OVI Essentials. Reference Manual Volume No. 15-W049

OVI Essentials Reference Manual Volume No. 15-W049 Ohio State Bar Association Continuing Legal Education is a division of the Ohio State Bar Association.

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OHIO STATE BAR ASSOCIATION CONTINUING LEGAL EDUCATION The Ohio State Bar Association Mission Statement Our Core Purpose To advance the professional interests of members of the Ohio State Bar Association. Our Core Values Member satisfaction, professionalism, foresight, and quality services and products. Our Goal To make membership in the Ohio State Bar Association indispensable to Ohio Lawyers. THE CLE STAFF Fran Wellington Director fwellington@ohiobar.org Todd Burch CLE Program Manager tburch@ohiobar.org Kerschie Byerly Senior CLE Publications Editor kbyerly@ohiobar.org Deanna Freeman Administrative Assistant dfreeman@ohiobar.org Jennifer Harrell Senior CLE Program Manager jharrell@ohiobar.org Jim Hogan Printing Manager jhogan@ohiobar.org Betsy Metzger Administrative Assistant bmetzger@ohiobar.org Lynda Morris CLE Program Coordinator lmorris@ohiobar.org Jeff Ross Printer Judy Ann Schiewer CLE Registrar jschiewer@ohiobar.org Mark Springer Studio Manager mspringer@ohiobar.org

OVI Essentials Vol. # 15-W049 1.0 CLE CREDIT HOUR; 1.0 NLT HOUR Thursday, May 07, 2015 at 1:00pm Featuring: D. Timothy Huey; Attorney at Law; Columbus Cleve M. Johnson; Attorney at Law; Columbus This presentation is a live webcast. If you have a question for the speaker during the presentation, please feel free to submit your inquiry to webquestions@ohiobar.org with OVI Essentials in the subject line or call 1-800-232-7124, and let the operator know that you have a question for the seminar speaker. The Supreme Court Commission on CLE has requested that we advise you that this webcast seminar is considered self-study. Under current regulations you are allowed to earn up to 6 of your 24 required CLE credits through self-study. In order to receive CLE credit for this webcast, you must view the entire program. No partial credit can be given. As you watch today s webcast at your computer, you should be looking for four unique Attendance Verification code letters. Each part of the code consists of a single letter that will appear on your screen periodically during the program. These four letters form a four-part code that documents your participation in this CLE program. When the course ends, go back to your self-study CLE account, from where you launched the webcast. Click on the tab marked Certificate and enter the four code letters in the order you received them. If the code is correct, the participation code requirement will display complete. You will also need to complete the course evaluation. Once these two requirements are met, you will be able to access a Certificate of Completion documenting your attendance and CLE credit hours. CLE regulations require that we submit requests for credit within 30 days of the date of the seminar or be assessed a late fee. If you do not enter the attendance verification codes or complete the evaluation, then we will not be able to report your credit.

Featured Speaker D. Timothy Huey Attorney at Law Columbus, Ohio Mr. Huey s professional memberships include the Ohio State Bar Association, Ohio Association of Criminal Defense Lawyers (Life Member; President-Elect; DUI Chair), and National College of DUI Defense (Ohio Delegate; Sustaining Member). He has been in private practice defending DUI clients since 1984, and limits his practice almost exclusively to defending citizens against DUI and vehicular homicide allegations. Mr. Huey was the first Ohio lawyer to obtain both the DataMaster and Intoxilyzer breath testing devices and one of the first Ohio lawyers to receive training in the NHTSA Standardized Field Sobriety Test protocol. He is a frequent speaker at OSBA CLE DUI/traffic seminars. Outside of Ohio, Mr. Huey has been a lecturer and mock trial participant for the National College for DUI Defense education at the Masters of Scientific Evidence seminar and a breakout session leader at NCDD Summer Sessions held at Harvard University. He has given presentations at DUI seminars in Oklahoma, Georgia, Texas, Wyoming, Florida and Arkansas. For additional information, please visit www.ohio-dui-defender.com. Cleve M. Johnson Attorney at Law Columbus, Ohio Mr. Johnson received his BA from The Ohio State University and his JD from Capital University Law School. His professional memberships include the National College for DUI Defense, Ohio Association of Criminal Defense Lawyers, Ohio State Bar Association (Chair, Traffic Law Committee), Columbus Bar Association, Central Ohio Association of Criminal Defense Lawyers, Governor s Task Force on Impaired Driving, and Ohio Criminal Sentencing Commission (Traffic Subcommittee). Mr. Johnson has been a criminal defense attorney since 1979 and is a frequent contributor to legal education seminars on topics relating to OVI and traffic law. He frequently testifies before committees of Ohio legislature and is certified to operate, calibrate, and perform diagnostic verification on a DataMaster breath-testing machine. For additional information, please visit www.clevejohnson.com.

OVI Essentials 1 Cleve M. Johnson Attorney at Law Columbus, Ohio

State of Ohio IN THE MUNICIPAL COURT FOR MOUNT VERNON, OHIO, CRIMINAL DIVISION -vs.- Plaintiff Case no.: 09TRC00480A-D Ronald M. Hall Defendant ENTRY OF APPEARANCE, APPEAL OF ADMINISTRATIVE LICENSE SUSPENSION, PETITION FOR DRIVING PRIVILEGES, ENTRY OF PLEA, WAIVER OF SPEEDY TRIAL, DEMAND FOR TRIAL BY JURY, AND REQUEST FOR ALS AND PRE-TRIAL HEARINGS The undersigned hereby enters his appearance as attorney of record for the defendant in the above captioned case. The defendant hereby appeals his administrative license suspension and asks that the case be set for a hearing on the administrative license suspension. In the alternative, defendant hereby petitions for limited driving privileges in the event that the administrative license suspension is not terminated. The defendant further demands a jury trial and certifies the following: The defendant waives the reading of the complaint. The defendant pleads not guilty. The defendant waives his right to have his case be tried within the statutory time limits and requests the court to notify counsel as to when the case will be CLEVE M. JOHNSON ATTORNEY AT LAW 495 S. High Street, Suite 400 Columbus, OH 43215-5058 FAX (614) 358-6633 set for a pre-trial hearing. Cleve M. Johnson JOH 28/0002367 Attorney for Defendant 495 South High Street, Suite 400 Columbus, Ohio 43215-5058

CERTIFICATE OF SERVICE This is to certify that a copy of the foregoing document was served upon William D. Smith, Prosecuting Attorney, 5. N. Gay St,, Mt. Vernon, Ohio 43050, by facsimile transmission, on (service date). Cleve M. Johnson JOH 28/0002367 Attorney for Defendant 495 South High Street, Suite 400 Columbus, Ohio 43215-5058 CLEVE M. JOHNSON ATTORNEY AT LAW 495 S. High Street, Suite 400 Columbus, OH 43215-5058 FAX (614) 358-6633 2

IN THE MUNICIPAL COURT FOR FRANKLIN COUNTY, OHIO, City of Columbus CRIMINAL DIVISION -vs.- Plaintiff Case no: JUDGE (UNASSIGNED) «FIRST_MID» «LAST» Defendant APPEAL OF ADMINISTRATIVE LICENSE SUSPENSION AND PETITION FOR LIMITED DRIVING PRIVILEGES The defendant/petitioner hereby appeals his administrative license suspension and petitions for limited driving privileges. Cleve M. Johnson JOH 28/0002367 Attorney for Defendant 495 South High Street, Suite 400 Columbus, Ohio 43215-5058 CERTIFICATE OF SERVICE This is to certify that a copy of the foregoing document was served on upon Steven L. McIntosh, Columbus City Prosecutor, attorney for plaintiff, 375 South CLEVE M. JOHNSON ATTORNEY AT LAW 495 S. High Street, Suite 400 Columbus, OH 43215-5058 FAX (614) 358-6633 High Street, Columbus, Ohio 43215, on February 12, 2004 by delivery. Cleve M. Johnson JOH 28/0002367 Attorney for Defendant 495 South High Street, Suite 400 Columbus, Ohio 43215-5058

DISCOVERY BREATH State of Ohio IN THE MUNICIPAL COURT FOR FRANKLIN COUNTY, OHIO, CRIMINAL DIVISION -vs.- Plaintiff XXXXXXXXXXXX Case no.: 2012 TR C XXXXXX JUDGE (UNASSIGNED) Defendant DEMAND FOR DISCOVERY, REQUEST FOR NOTICE OF INTENT TO USE EVIDENCE, AND DEMAND FOR TESTIMONY LABORATORY ANALYIST Now comes the defendant, through counsel, and hereby requests that the prosecuting attorney forthwith provide all discovery to which the defense is entitled under the laws of Ohio, the Ohio and Federal Constitutions, the Ohio Rules of Criminal Procedure, the Ohio Traffic Rules and the case of Brady vs. Maryland. Defendant also asks that all material be made available for copying. By way of example, defendant requests discovery in the following particulars (this request should in no way be interpreted as being limited only to said particulars): CLEVE M. JOHNSON ATTORNEY AT LAW 495 S. High Street, Suite 400 Columbus, OH 43215-5058 FAX (614) 358-6633 1. Any written or recorded statement by the defendant or a codefendant, including police summaries of such statements, and including grand jury testimony by either the defendant or codefendant. 2. Criminal and traffic records of the defendant, a co-defendant, and the record of prior convictions that could be admissible under Rule 609 of the Ohio Rules of Evidence of a witness in the state s case-inchief, or that it reasonably anticipates calling as a witness in rebuttal 3. All laboratory or hospital reports, books, papers, documents, photographs, recordings, tangible objects, buildings, or places.

a. The manufacturer's operating manual for any machine or device used to test or otherwise evaluate a sample of the defendant's blood, breath or urine to determine alcohol content; b. The manufacturer's service manual for any machine or device used to test or otherwise evaluate a sample of the defendant's blood, breath or urine to determine blood alcohol content; c. Any and all warranties and documentation of purchase date for any machine or device used to test or otherwise evaluate a sample of the defendant's blood, breath or urine to determine blood alcohol content; d. If the defendant submitted to a breath test, the calibration records for such machine or device preceding and following the date of the test performed on the defendant; and e. If the defendant submitted to a blood or urine test, the documents which reflect all blood or urine specimens by name, date and test result which were tested by the entity conducting the test on defendant's specimen. 4. Results of physical or mental examinations, experiments or scientific tests. 5. Any evidence favorable to the defendant and material to guilt or punishment. 6. All reports from peace officers, the Ohio State Highway Patrol, and federal law enforcement agents, including coordination or dexterity tests conducted of the defendant. 7. Any written or recorded statement by a witness in the state s casein-chief, or that it reasonably anticipates calling as a witness in rebuttal. 8. A written witness list, including names and addresses of any witness it intends to call in its case-in-chief, or reasonably anticipates calling in rebuttal or surrebuttal. CLEVE M. JOHNSON ATTORNEY AT LAW 495 S. High Street, Suite 400 Columbus, OH 43215-5058 FAX (614) 358-6633 9. The written expert witness report required by Criminal Rule 16 summarizing the expert witness s testimony, findings, analysis, conclusions, or opinion, including a summary of the expert s qualifications. If a police officer will testify as an expert on any subject or offer an opinion on any subject based upon his training and/or experience the report regarding that testimony is also hereby expressly requested. 10. The results of chemical or scientific tests or experiments made in connection with this case, including: 2

a. Breath test results; b. Blood test results; c. Urine test results; and d. Any and all results of tests, experiments or evaluations of the machine, device or process used to obtain said breath, blood or urine test. 11. If a breath test was utilized, for the last calibration of the machine prior to the test of the defendant, discovery of the following information is requested: a. The name of the individual who prepared the calibration solution; b. The batch number of the calibration solution; c. The date the calibration solution was made; d. The percentage of known concentration of ethyl alcohol contained in the calibration solution; e. The date the calibration solution was received by the agency which conducted the breath test of the defendant; f. The date of the first use of the calibration solution; and g. The physical location of the calibration solution while it was in use. h. The certificate of analysis from Guth Labs or any other entity which provides alcohol calibration solutions to the Department of Health and which pertains to the batch and bottle used in this case. 12. With respect to the chemical or scientific test performed on the defendant's blood, breath or urine, for the year preceding the date of the test performed on the defendant, discovery of the following information is requested: CLEVE M. JOHNSON ATTORNEY AT LAW 495 S. High Street, Suite 400 Columbus, OH 43215-5058 FAX (614) 358-6633 a. The dates of all maintenance performed on the machine or device used to conduct the test; b. The type of maintenance performed on the machine or device; and c. The name of the entity or person performing the maintenance. d. A complete copy of the repair log on any testing instrument used. 3

13. If analysis was performed on a sample of the defendant's blood or urine, discovery of the following information is requested: a. The name of the agency or authority which performed such test; b. The name and address of the person drawing the blood or collecting the urine; c. The training or qualifications of the person drawing blood; d. The date of the last evaluation of said agency or authority's laboratory by the appropriate certification authority; e. A copy of the last certification evaluation. f. If the defendant's blood was drawn by a hospital, copy of all protocols for drawing blood, all laboratory procedures or protocols of the testing laboratory for the collecting of samples, packaging, and shipment of blood or urine samples and g. Copies of all testing protocols and procedures for the laboratory analyzing defendant's sample. 14. The location of the blood, breath, or urine sample obtained from the defendant and subjected to testing by the government. 15. The location of the additional blood, breath or urine sample obtained from the defendant and preserved by the government so that the defendant could obtain independent analysis of the same. 16. The tapes of any calls to the radio room or dispatches from the radio room regarding or in any way relating to the defendant along with any records indicating the precise time that said tape was made. 17. If a breath test was conducted, the results of the RFI test regarding the machine and site where the defendant was tested. CLEVE M. JOHNSON ATTORNEY AT LAW 495 S. High Street, Suite 400 Columbus, OH 43215-5058 FAX (614) 358-6633 18. Copies of the operator's and/or senior operator's permits for the testing and calibrating officers and the last date of completion of any in-service courses pursuant to the Ohio Administrative Code. 19. Any and all training manuals used by any prosecution witness, including, but not limited to National Highway Traffic Safety Administration manuals or other field sobriety testing manuals. 20. The most current versions of all training manuals as of the arrest date in this case whether or not such manuals were actually 4

used by any prosecution witness, including, but not limited to National Highway Traffic Safety Administration manuals or other field sobriety testing manuals. Defendant asks that all evidence be preserved and not destroyed while this case is pending including, but not limited to: A. Any and all video and audio recordings. B. If Defendant submitted to or a blood or urine sample was obtained for testing, defendant demands that the samples obtained from the defendant be retained to allow the defendant to obtain an independent test and that the defendant be notified prior to the destruction of the samples if the entire sample is to be used in testing by the state. C. If a blood or urine test kit was used to collect a sample from the defendant the defendant requests that the original box in which the testing kit was packed be preserved and made available for inspection by the defendant and that the state provide. 1) the name of the manufacturer of the kit, 2) the date of manufacture of the kit, 3) the expiration date of the kit, and 4) the specific contents of the kit. Pursuant to Criminal Rule 12(E) the defendant hereby requests notice of the prosecuting attorney's intention to use evidence in chief at trial, which evidence the defendant is entitled to discover under Criminal Rule 16. The defendant further demands live testimony of any and all laboratory analysts. The defendant specifically objects to the use of any report, affidavit, or other document in lieu of live testimony. CLEVE M. JOHNSON ATTORNEY AT LAW 495 S. High Street, Suite 400 Columbus, OH 43215-5058 FAX (614) 358-6633 Cleve M. Johnson JOH 28/0002367 Attorney for Defendant 495 South High Street, Suite 400 Columbus, Ohio 43215-5058 5

CERTIFICATE OF SERVICE This is to certify that a copy of the foregoing document was served upon Lara N. Baker, Columbus City Prosecutor, attorney for plaintiff, 375 South High Street, Columbus, Ohio 43215, by delivery, on February 14, 2012. Cleve M. Johnson JOH 28/0002367 Attorney for Defendant 495 South High Street, Suite 400 Columbus, Ohio 43215-5058 CLEVE M. JOHNSON ATTORNEY AT LAW 495 S. High Street, Suite 400 Columbus, OH 43215-5058 FAX (614) 358-6633 6

State of Ohio IN THE MUNICIPAL COURT FOR FRANKLIN COUNTY, OHIO, CRIMINAL DIVISION Plaintiff -vs.- XXXXXXXXXXXX Defendant Case no.: 2011 TR C XXXXXX JUDGE (UNASSIGNED) ORDER DIRECTING PRODUCTION AND PRESERVATION OF VIDEO RECORDINGS The superintendent and all employees of the Ohio State Highway Patrol are hereby ordered to preserve and to allow counsel to review and/or copy as required by Criminal Rule 16, any and all video recordings of the defendant made by law enforcement in this case. Said colonel and employees are further ordered not to erase or destroy said recordings without written permission of the court. The Police Chief and all employees of the Columbus Police Department are hereby ordered to preserve and to allow counsel to review and/or copy as required by Criminal Rule 16, any and all video recordings of the defendant made by law enforcement in this case. Said chief and employees are further ordered not to erase or destroy said recordings without written permission of the court. The Sheriff of Franklin County, Ohio and all employees of that office are hereby ordered to preserve and to allow counsel to review and/or copy as required by Criminal Rule 16, any and all video recordings of the defendant made by law enforcement in this case. Said chief and employees are further ordered not to erase or destroy said recordings without written permission of the court. Arrest Date 1/13/11 Offense Time: 1:31 a.m. JUDGE

Approved: Cleve M. Johnson JOH 28/0002367 Attorney for Defendant 495 South High Street, Suite 400 Columbus, Ohio 43215-5058 Assistant City Attorney Attorney For Plaintiff 375 South High Street Columbus, Ohio 43215 (614) 645-7483

State of Ohio IN THE MUNICIPAL COURT FOR FRANKLIN COUNTY, OHIO, CRIMINAL DIVISION -vs.- Plaintiff Adam J. Pugh, Case no.: 2010 TR C 194282 JUDGE (UNASSIGNED) Defendant DEMAND FOR DISCOVERY, REQUEST FOR NOTICE OF INTENT TO USE EVIDENCE, AND DEMAND FOR TESTIMONY LABORATORY ANALYIST Now comes the defendant, through counsel, and hereby requests that the prosecuting attorney forthwith provide all discovery to which the defense is entitled under the laws of Ohio, the Ohio and Federal Constitutions, the Ohio Rules of Criminal Procedure, the Ohio Traffic Rules and the case of Brady vs. Maryland. Defendant also asks that all material be made available for copying. By way of example, defendant requests discovery in the following particulars (this request should in no way be interpreted as being limited only to said particulars): CLEVE M. JOHNSON ATTORNEY AT LAW 495 S. High Street, Suite 400 Columbus, OH 43215-5058 FAX (614) 358-6633 1. Any written or recorded statement by the defendant or a codefendant, including police summaries of such statements, and including grand jury testimony by either the defendant or codefendant. 2. Criminal and traffic records of the defendant, a co-defendant, and the record of prior convictions that could be admissible under Rule 609 of the Ohio Rules of Evidence of a witness in the state s case-inchief, or that it reasonably anticipates calling as a witness in rebuttal 3. All laboratory or hospital reports, books, papers, documents, photographs, recordings, tangible objects, buildings, or places.

a. The manufacturer's operating manual for any machine or device used to test or otherwise evaluate a sample of the defendant's blood, breath or urine to determine alcohol content; b. The manufacturer's service manual for any machine or device used to test or otherwise evaluate a sample of the defendant's blood, breath or urine to determine blood alcohol content; c. Any and all warranties and documentation of purchase date for any machine or device used to test or otherwise evaluate a sample of the defendant's blood, breath or urine to determine blood alcohol content; d. If the defendant submitted to a breath test, the calibration records for such machine or device preceding and following the date of the test performed on the defendant; and e. If the defendant submitted to a blood or urine test, the documents which reflect all blood or urine specimens by name, date and test result which were tested by the entity conducting the test on defendant's specimen. 4. Results of physical or mental examinations, experiments or scientific tests. 5. Any evidence favorable to the defendant and material to guilt or punishment. 6. All reports from peace officers, the Ohio State Highway Patrol, and federal law enforcement agents, including coordination or dexterity tests conducted of the defendant. 7. Any written or recorded statement by a witness in the state s casein-chief, or that it reasonably anticipates calling as a witness in rebuttal. 8. A written witness list, including names and addresses of any witness it intends to call in its case-in-chief, or reasonably anticipates calling in rebuttal or surrebuttal. CLEVE M. JOHNSON ATTORNEY AT LAW 495 S. High Street, Suite 400 Columbus, OH 43215-5058 FAX (614) 358-6633 9. The written expert witness report required by Criminal Rule 16 summarizing the expert witness s testimony, findings, analysis, conclusions, or opinion, including a summary of the expert s qualifications. If a police officer will testify as an expert on any subject or offer an opinion on any subject based upon his training and/or experience the report regarding that testimony is also hereby expressly requested. 10. The results of chemical or scientific tests or experiments made in connection with this case, including: 2

a. Breath test results; b. Blood test results; c. Urine test results; and d. Any and all results of tests, experiments or evaluations of the machine, device or process used to obtain said breath, blood or urine test. 11. If a breath test was utilized, for the last calibration of the machine prior to the test of the defendant, discovery of the following information is requested: a. The name of the individual who prepared the calibration solution; b. The batch number of the calibration solution; c. The date the calibration solution was made; d. The percentage of known concentration of ethyl alcohol contained in the calibration solution; e. The date the calibration solution was received by the agency which conducted the breath test of the defendant; f. The date of the first use of the calibration solution; and g. The physical location of the calibration solution while it was in use. h. The certificate of analysis from Guth Labs or any other entity which provides alcohol calibration solutions to the Department of Health and which pertains to the batch and bottle used in this case. 12. With respect to the chemical or scientific test performed on the defendant's blood, breath or urine, for the year preceding the date of the test performed on the defendant, discovery of the following information is requested: CLEVE M. JOHNSON ATTORNEY AT LAW 495 S. High Street, Suite 400 Columbus, OH 43215-5058 FAX (614) 358-6633 a. The dates of all maintenance performed on the machine or device used to conduct the test; b. The type of maintenance performed on the machine or device; and c. The name of the entity or person performing the maintenance. d. A complete copy of the repair log on any testing instrument used. 3

13. If analysis was performed on a sample of the defendant's blood or urine, discovery of the following information is requested: a. The name of the agency or authority which performed such test; b. The name and address of the person drawing the blood or collecting the urine; c. The training or qualifications of the person drawing blood; d. The date of the last evaluation of said agency or authority's laboratory by the appropriate certification authority; e. A copy of the last certification evaluation. f. If the defendant's blood was drawn by a hospital, copy of all protocols for drawing blood, all laboratory procedures or protocols of the testing laboratory for the collecting of samples, packaging, and shipment of blood or urine samples and g. Copies of all testing protocols and procedures for the laboratory analyzing defendant's sample. 14. The location of the blood, breath, or urine sample obtained from the defendant and subjected to testing by the government. 15. The location of the additional blood, breath or urine sample obtained from the defendant and preserved by the government so that the defendant could obtain independent analysis of the same. 16. The tapes of any calls to the radio room or dispatches from the radio room regarding or in any way relating to the defendant along with any records indicating the precise time that said tape was made. 17. If a breath test was conducted, the results of the RFI test regarding the machine and site where the defendant was tested. CLEVE M. JOHNSON ATTORNEY AT LAW 495 S. High Street, Suite 400 Columbus, OH 43215-5058 FAX (614) 358-6633 18. Copies of the operator's and/or senior operator's permits and/ or access cards for the testing and calibrating officers and the last date of completion of any in-service courses pursuant to the Ohio Administrative Code. 19. Any and all training manuals used by any prosecution witness, including, but not limited to National Highway Traffic Safety Administration manuals or other field sobriety testing manuals. 20. If a blood or urine test was performed, the defendant demands discovery in the following particulars: 4

a. The lab case file b. Chromatograms of defendant s samples and calibrators and quality controls c. SOP for the blood or urine alcohol which was analyzed d. Documentation as to source of calibrators e. Starting materials f. SOP for preparation of calibrators g. Identification of source and preparation of the quality control samples h. Copies of internal audits for last 2 audits i. External laboratory audits for last 2 audits j. All repair records (Have some--may have been provided) 21. Calibrators a. Chromatograms for any and all calibrators used in any and all runs of the defendants samples b. Any and all manufacturer s data describing the AC of the calibrator including, but not limited to, traceability to NIST c. Procedure for manufacture and any notes covering the manufacture of the calibrators, if made in house. d. Any in house laboratory data verifying or determining, or resetting the AC of the calibrator. e. Any data verifying or determining the AC of the calibrator. 22. Standards CLEVE M. JOHNSON ATTORNEY AT LAW 495 S. High Street, Suite 400 Columbus, OH 43215-5058 FAX (614) 358-6633 a. Chromatograms for any and all standards used in any and all runs of the defendant s samples. b. Any and all manufacturer s data describing the AC of the standard included, but not limited to, traceability to NIST. c. Procedure for manufacture and any notes covering the manufacture of the standard(s), used in this case, if made in house. d. Any in house laboratory data verifying or determining the AC of the standard. 5

e. Any DPS, Mesa, Scottsdale, Chandler, or Tucson laboratory data verifying or determining the AC of the standard. 23. Blanks a. Chromatograms for any and all blanks analyzed as part of this run(s) of the defendants sample. 24. Controls or Control Reference Material (CRM) a. Chromatograms for any and all controls used in any and all runs of the defendant s samples. b. Any and all manufacturer s data describing the AC of the control including, but not limited to, traceability to NIST. c. Any in house laboratory data verifying or determining or resetting the AC of the control. d. Any DPS, Mesa, Scottsdale, Chandler, or Tucson laboratory data verifying or determining the AC of the control. 24. Verifiers a. Chromatograms for any and all verifiers used in any and all runs of the defendants samples. 25. Defendants Sample a. Any and all chromatograms generated from any and all runs of the defendants blood in this case. 26. Other samples analyzed as part of the run a. Chromatograms from any and all defendant s samples on any and all runs in which the defendants samples were analyzed. b. Chromatograms from any and all other samples, samples, other than the aforementioned calibrators, standards, blanks and controls from any and all runs in which the defendants samples were analyzed. 27. Analyst s notes for the defendants sample(s) CLEVE M. JOHNSON ATTORNEY AT LAW 495 S. High Street, Suite 400 Columbus, OH 43215-5058 FAX (614) 358-6633 a. Any and all notes, electronic or handwritten, covering the description and chain of custody, generated by the analyst covering any and all runs of the defendants samples. b. Copies of paperwork covering the submission and reporting of the analytical result for the defendants sample. c. Copies of any photos or xerographic reproductions of the seals, packaging information on the packaging or on the blood tubes themselves 6

28. Analyst qualifications information a. Copy of the Analyst s permit. b. Copy of the Analyst s permit application. c. Proof that the Analyst has the necessary minimum qualification requirements under Ohio Department of Health regulations. d. Copies of any and all proficiency results for the analyst. 29. Phlebotomist a. Identification of the phlebotomist that collected the sample or samples in this case. b. List or training and qualifications for the Phlebotomist to draw blood. c. Procedure that Phlebotomist followed while drawing blood. d. Copies of any notes of checklists that the Phlebotomist followed while drawing the defendant s blood. e. Information describing the type of swab used to sterilize the location of the venipuncture. f. Information describing the manufacturer, model and expiration for the blood kit and for the blood tubes (Vacutainer or other brand). g. Description of the site of the venipuncture utilized in the drawing of the defendants blood in this case. 30. Gas chromatograph, headspace sampler and dilutor information. a. Manufacturer and model number of the gas chromatograph used to analyze the defendants blood. This should include they type of detectors utilized. b. Manufacturer and model number for the headspace sampler used to analyze the defendants blood. CLEVE M. JOHNSON ATTORNEY AT LAW 495 S. High Street, Suite 400 Columbus, OH 43215-5058 FAX (614) 358-6633 c. Manufacturer and model number of the dilutor used to sample and dilute the blood of the defendant. d. Manufacturer and model number of the gas chromatographic columns used in the gas chromatograph used to analyze the blood of the defendant. e. Manufacturer and model number of the integrator and software used to calculate the analytical result for the blood alcohol analysis of the defendants blood. 7

f. Records of any repairs, preventative maintenance, maintenance, or adjustments made to the gas chromatograph, headspace sampler or dilutor covering a period of at least one month prior to the date of the analysis of the blood in this case to one month after the date of said analysis. g. Records of any gravimetric or non gravimetric verification or validation of the pipette or dilutor used in the analysis of the defendants blood. h. Limit of detection and limit of quantification for ethanol for the analytical procedure used to analyze the blood of the defendant in this case. 31. A copy of the complete analytical procedure followed for the analysis of the blood Defendant asks that all evidence be preserved and not destroyed while this case is pending including, but not limited to: A. Any and all video and audio recordings. B. If Defendant submitted to or a blood or urine sample was obtained for testing, defendant demands that the samples obtained from the defendant be retained to allow the defendant to obtain an independent test and that the defendant be notified prior to the destruction of the samples if the entire sample is to be used in testing by the state. C. If a blood or urine test kit was used to collect a sample from the defendant the defendant requests that the original box in which the testing kit was packed be preserved and made available for inspection by the defendant and that the state provide. 1) the name of the manufacturer of the kit, 2) the date of manufacture of the kit, 3) the expiration date of the kit, and CLEVE M. JOHNSON ATTORNEY AT LAW 495 S. High Street, Suite 400 Columbus, OH 43215-5058 FAX (614) 358-6633 4) the specific contents of the kit. Pursuant to Criminal Rule 12(E) the defendant hereby requests notice of the prosecuting attorney's intention to use evidence in chief at trial, which evidence the defendant is entitled to discover under Criminal Rule 16. 8

The defendant further demands live testimony of any and all laboratory analysts. The defendant specifically objects to the use of any report, affidavit, or other document in lieu of live testimony. Cleve M. Johnson JOH 28/0002367 Attorney for Defendant 495 South High Street, Suite 400 Columbus, Ohio 43215-5058 CERTIFICATE OF SERVICE This is to certify that a copy of the foregoing document was served upon Lara N. Baker, Columbus City Prosecutor, attorney for plaintiff, 375 South High Street, Columbus, Ohio 43215, by delivery, on January 19, 2011. Cleve M. Johnson JOH 28/0002367 Attorney for Defendant 495 South High Street, Suite 400 Columbus, Ohio 43215-5058 CLEVE M. JOHNSON ATTORNEY AT LAW 495 S. High Street, Suite 400 Columbus, OH 43215-5058 FAX (614) 358-6633 9

City of Columbus IN THE MUNICIPAL COURT FOR FRANKLIN COUNTY, OHIO, CRIMINAL DIVISION Plaintiff -vs.- XXXXXXXXXXXX Defendant Case no.: 2009 TR C XXXXXX JUDGE (UNASSIGNED) ORDER DIRECTING PRODUCTION AND PRESERVATION OF VIDEO RECORDINGS The Police Chief and all employees of the Perry Township Police Department are hereby ordered to preserve and to allow counsel to review and/or copy as required by Criminal Rule 16, any and all video recordings of the defendant made by law enforcement. Said chief and employees are further ordered not to erase or destroy said recordings without written permission of the court. Arrest Date 8/30/09 Offense Time: 2:11 a.m. Approved: JUDGE Cleve M. Johnson JOH 28/0002367 Attorney for Defendant 495 South High Street, Suite 400 Columbus, Ohio 43215-5058 Assistant City Attorney Attorney For Plaintiff 375 South High Street Columbus, Ohio 43215 (614) 645-7483

Department Simulator type Machine TYPE From to Machine Ser. No. *Make sure not copy of certificate; however, this is at best a trial issue. State vs. Kauffman 106 Ohio App 3d 831 (1995). α State v. Lauer, 146 Ohio App.3d 354, 766 N.E.2d 193, 2001-Ohio-2291 (Ohio App. 3 Dist. Oct 15, 2001) (NO. 13-01-10) CALIBRATION LOG REPORT Date Prior Batch No. Bottle No. (Certificate*) First Use Discard Date/Exp Dt Target Value Result Sr. Operator (Certificate) Which Machine Type Cert Exp DT All Boxes Checked Gap In Test ID#? RFI Check α (7days ~192 hrs) Time Operators Name & Certificate Dates: Note any repairs, dates, & details: (ck original or last factory calibrate same solution as instrument ck?) BAC Room: Simulator type, Circuit/Plug, Where is manual?

IN THE MUNICIPAL COURT FOR FRANKLIN COUNTY, OHIO, City of Columbus CRIMINAL DIVISION Plaintiff -vs.- John Doe Defendant Case no.: 2008 TRC XXXXXX JUDGE (UNASSIGNED) REQUEST FOR ORAL HEARING As per local Rule 3.04,counsel requests an oral hearing at which witnesses will be presented. MOTION TO SUPPRESS AND/OR IN LIMINE Now comes the defendant, through counsel, and hereby moves to suppress, or in the alternative for an order in limine prohibiting introduction of any and all evidence, obtained from the warrantless seizure of the defendant including but not limited to: A. Tests of Defendant's coordination and/or sobriety and/or alcohol and/or drug level, including but not limited to chemical tests of defendant's alcohol and/or drug level. B. Statements taken from or made by the defendant. C. The defendant s exercise of his right to remain silent. CLEVE M. JOHNSON ATTORNEY AT LAW 495 S. High Street, Suite 400 Columbus, OH 43215-5058 FAX (614) 358-6633 D. Observations and opinions of the police officer(s) who stopped the defendant and/or arrested and/or tested the defendant regarding defendant's sobriety and/or alcohol and/or drug level. E. Observations of the officer which import an unwarranted aura of scientific validity to the field sobriety tests. The defendant submits that the burden is upon the state to justify the warrantless seizure of the defendant and evidence taken from the defendant and to show why the above evidence should not be suppressed due to the following grounds.

1. There was no lawful cause to stop or detain the Defendant, detain the Defendant, and/or probable cause to arrest the Defendant without a warrant. 2. The test or tests to determine the Defendant s alcohol or drug level were not taken voluntarily and were unconstitutionally coerced when obtained due to the threat of loss of license not sanctioned by the requirement of R.C. 4511. 191 or 4511.192. 3. The individual administering the Defendant s test of alcohol did not conduct the test in accordance with the time limitation and regulations of the State of Ohio in R.C. 4511.19(D), 4506.17(B) and the Ohio Department of Health governing such testing and/or analysis, as set forth in chapter 3701-53-02 of the Ohio Administrative Code, including the operator s checklist instructions issued by the Ohio Department of Health under OAC 3701-53-02(D) and the instrument display under in violation of OAC 3701-53-02(E).. 4. The senior operator or operator operating the tester in the case at bar did not meet the qualification requirements specified in OAC 3701-53- 07(D) and (E). 5. The Datamaster or Intoxilyzer 5000 operator was prohibited from using those testers under OAC 3701-53-09(D) because at the time of the test, said operator had previously been issued an operator access card for an Intoxilyzer 8000 under OAC 3701-53-07(D). 6. The Datamaster or Intoxilyzer 5000 senior operator was prohibited from using those testers under OAC 3701-53-09(D) because at the time of the instrument check, said operator had previously been issued an operator access card for an Intoxilyzer 8000 under OAC 3701-53-07(D). 7. The machine or instrument analyzing Defendant s alcohol level was not in proper working order and a proper instrument check was not done once every seven days in accordance with the appropriate instrument checklist pursuant to OAC 3701-53-04 (A). a. The senior operator conducting the instrument check did not fill the simulator with 500 ml of solution, replace the top and check the seal by holding a finger over the output port and blowing into the input port. CLEVE M. JOHNSON ATTORNEY AT LAW 495 S. High Street, Suite 400 Columbus, OH 43215-5058 FAX (614) 358-6633 a. The senior operator conducting the check did not turn on the simulator and allow it to warm up fully. b. The senior operator conducting the check did not determine that the metal surrounding the top of the glass jar on the simulator was warm before attempting the instrument check. c. The senior operator conducting the instrument check did not blow through the input port to toughly mix the vapor in the space above 2

the solution before connecting the simulator to the testing machine. 8. The operator s manual was not kept in the area where the tests were performed as required by OAC 3701-53-01(B) and State vs. Douglas, 2004 Ohio 5726,; 2004 Ohio App. LEXIS 5167. 9. The operator s manual(s), was (were) not followed as required by State vs. Schlegel, 2004 Ohio 2535; 2004 Ohio App. LEXIS 2245. 10. The instrument check performed pursuant to OAC 3701-53-04(A) was not at or within five one-thousandths (0.005) grams per 210 liters of the target value for the instrument check solution pursuant to OAC 3701-53- 04(A)(2). 11. The instrument check performed pursuant to OAC 3701-53-04(A) was not performed within 192 hours of the last instrument check. 12. The instrument check solution had been in use for more than three months after its date of first use in violation of OAC 3701-53-04 (A)(1). 13. The results of the instrument check were outside the range specified in OAC 3701-53-04(A)(1) but were not confirmed by a senior operator using another bottle of instrument check solution pursuant to OAC 3701-53- 04(A)(2). 14. The solution was used to calibrate the testing instrument was not kept under refrigeration after first use in accordance with OAC 3701-53-04(1). 15. The alcohol solution was not kept under refrigeration when not being used nor was the approved solution bottle retained for reference until that bottle of approved solution was discarded in violation of OAC 3701-53-04(E). 16. A bottle of approved solution was used either more than three months after its date of first use, or after the manufacturer's expiration date on the approved solution certificate in violation of OAC 3701-53-04(E). CLEVE M. JOHNSON ATTORNEY AT LAW 495 S. High Street, Suite 400 Columbus, OH 43215-5058 FAX (614) 358-6633 17. The solution used to calibrate the testing instrument was used after the manufacturer s expiration date or more than three years after its date of manufacture, notwithstanding the manufacturer s expiration date pursuant to OAC 3701-53-04 (A)(1). 18. The instrument check solution used to conduct the instrument check was not properly approved by the Director of Health pursuant to OAC 3701-53-04 (A)(2) and ODHL Method 5810. 19. Results of instrument checks which were outside the range specified in OAC 3701-53-04(A)(1) were not preserved, identified and retained pursuant to OAC 3701-53-04(E) and OAC 3401-53-04(A). 20. Results of instrument checks, controls, certifications, calibration checks and records of service and repairs were not preserved, identified and 3

retained in accordance with paragraph (A) of rule 3701-53-01 of the Administrative Code, OC as required by 3701-53-04(C) and OAC 3701-53-04(G) and State vs. Lipsky, 2002 Ohio 1141, 2002 WL 397748 (Ohio App. 1 Dist.). 21. The method used to analyze the Defendant s breath does not have documented sensitivity, specificity, accuracy, precision, and linearity pursuant to OAC 3701-53-03(A). 22. A radio frequency interference check was not performed using a hand held radio normally used by the law enforcement agency pursuant to OAC 3701-53-04(A) and (A)(1). 23. A radio frequency interference check detector check was not valid because the evidential breath testing instrument did not detect RFI or did not abort a subject test pursuant to OAC 3701-53-04(A) and (A)(1). 24. An instrument check was not performed in accordance with OAC 3701-53-04(A) when the breath testing instrument was put into service or when the instrument was returned to service after maintenance or repairs pursuant to OAC 3701-53-04(B). 25. The operator was not licensed to operate the instrument analyzing the Defendant s alcohol level nor was he supervised by a senior operator in accordance with OAC 3701-53-07. The person or person calibrating the instrument analyzing Defendant s alcohol level were not currently licensed to calibrate the instrument in accordance with OAC 3701-53-07. 26. By removing the forms in the appendix of the Ohio Administrative Code, the 2000 amendments to that code left this state without any officially approved procedure for administrating breath tests. As such, suppression is warranted under State v. Ripple,70 Ohio St.3d 86, 637 N.E.2d 304 (1994). 27. The diagnostic check indicated a component failure. 28. Alveolar or deep lung air was not sampled as required by OAC 3701-53- 02 (C). The testing machine is not adequately designed and/or the regulations are not properly drafted so as to ensure that alveolar air is sampled. CLEVE M. JOHNSON ATTORNEY AT LAW 495 S. High Street, Suite 400 Columbus, OH 43215-5058 FAX (614) 358-6633 29. Results of instrument checks, controls, certifications, calibration checks and records of service and repairs were not retained for three years as required by OAC 3701-53-01(A) and OAC 3401-53-04(G) 30. The December 14, 1998 memorandum from the Ohio Department Of Health regarding the need to wait 20 minutes following an invalid sample was not complied with. 4

31. The Director of the Department of Health abused his discretion by not providing for a two test system or by failing to take other adequate measures to ensure that only deep lung or alveolar air is sampled. 32. The breath test should be excluded because the traditional safeguards for admitting scientific evidence have been abandon in favor of the current Ohio regulatory process. This process changes and shifts the burden of proof, violates the sixth amendment, denies the defendant s right to due process of law and fails to ensure that the test is either scientifically accurate or reliable 33. Statements from the defendant were obtained in violation of his Fifth Amendment right against self-incrimination and both his Fifth and Sixth Amendment right to counsel as applicable under the Fourteenth Amendment and in violation of similar rights under the Ohio Constitution. 34. The field sobriety tests administered to the Defendant by the arresting officer were not administered in accordance with the training the officer received in the administration of field sobriety tests and/or the polices and procedures of the arresting officer s department. 35. NHTSA field tests were not performed in accordance with the testing standards in effect at the time the tests were administered, as required by ORC 4511.19(D)(4)(b). 36. The Ohio Administrative Code and Ohio Rev. Code 4511.19 themselves violate the Modern Courts Amendment to the Ohio Constitution, Const. Art. IV, 5, insofar as they purport to set forth rules for the admissibility of evidence. As such, any test or tests should be suppressed unless a proper foundation is laid independent of any such requirements. 37. According to the NHTSA manuals, with the exception of vertical nystagmus, the field sobriety tests are correlated with a prohibited concentration of alcohol only. There is no claim that they can predict drug or alcohol impairment and thus are irrelevant to drug or cases alleging impairment by alcohol. CLEVE M. JOHNSON ATTORNEY AT LAW 495 S. High Street, Suite 400 Columbus, OH 43215-5058 FAX (614) 358-6633 38. A chemical test is inadmissible absent retrograde extrapolation to the time of the offense based upon sufficient evidence to make such calculations. 39. Documents may not be used against the defendant without affording him his right to confront witnesses against him under Crawford vs. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004) and without violating Evid R 803 (8). 40. An outdated form 2255 was used in this case which had incorrect information as to the lengths of the suspensions which vitiated any action taken by the defendant in response to such information. 5

Cleve M. Johnson JOH 28/0002367 Attorney for Defendant 495 South High Street, Suite 400 Columbus, Ohio 43215-5058 Fax (614) 358-6633 CLEVE M. JOHNSON ATTORNEY AT LAW 495 S. High Street, Suite 400 Columbus, OH 43215-5058 FAX (614) 358-6633 6

MEMORANDUM Probable Cause The magic words theory of probably cause is not the law and should not be applied in this case. It is sometimes assumed that the state s burden in a motion hearing is so slight that all that is required for the burden to be met is for the officer to mention a few well known phrases such strong odor of alcohol. This is the magic words theory of probable cause and it is not the law. The law as set forth by the Ohio Supreme Court is as follows: Probable cause to believe a driver is operating a vehicle while intoxicated arises from readily discernable indicia under the totality of the circumstances. State v. Gustafson, 76 Ohio St.3d 425, 450, 668 N.E.2d 435, 453, 1996-Ohio-425 (Ohio, Jul 30, 1996), emphasis added. Consequently, contrary to popular belief, once the magic words are uttered, the case is not over. All of the other facts and circumstances are relevant and are the proper subject of inquiry. To put it simply, the court cannot just say I have three things consistent with probable cause and I have heard enough. If there are 57 things inconsistent with probable cause and only three things consistent with probable cause, under the totality of the circumstances requirement, there is not probable cause. Likewise, if the court has heard the three things favoring probable cause but not the 57 things inconsistent with it, the court has not considered the totality of the circumstances. All 60 are relevant and must be considered even if the three have been proven. The inquiry does not end after the magic words are spoken CLEVE M. JOHNSON ATTORNEY AT LAW 495 S. High Street, Suite 400 Columbus, OH 43215-5058 FAX (614) 358-6633 nor is it proper to reach a decision at that point. All factors must be considered. It is submitted that the evidence will show that there was no valid reason to stop or detain the defendant. Evidence flowing from an illegal stop, detention and/or arrest cannot be used to convict the defendant. State vs. Chatton, 11 Ohio St. 3d 59, 463 N.E. 2d 1237 (1984); State vs. Timson, 38 Ohio St. 2d 122, 7

311 N.E. 2d 16 (1974); State vs. Walters, Hamilton App. No. C-80413 (March 27, 1985) unreported. Parenthetically, it should also be noted that since the court file disclosed that this was a warrantless arrest, the prosecution bears both the burden of proof and the burden of going forward on all issues raised in this motion pursuant to the cases of Mentor vs. Giordano, 9 Ohio St. 2d 140 (1967) and Xenia vs. Wallace, 37 Ohio St. 2d 216 (1988). PASTE INSERT FOR SPECIFIC PROBABLE CAUSE OFFENSE HERE. Specifically it is submitted that the evidence will be insufficient to show that the officer had reasonable suspicion to believe that the defendant committed a headlight violation and that there was no other valid reason for stopping the defendant or for arresting him for OVI. Furthermore, a headlight violation alone does not provide probable cause to arrest for OVI where there were not enough other signs of intoxication to constitute probable cause for that offense under State vs. Finch, 24 Ohio App 3d 38 (1985). See also State vs. Taylor, 3 Ohio App. 3d, 197 (1981) holding that speed alone and a mere odor of alcohol is insufficient to constitute probable cause. Nor can the prosecution bootstrap the probable cause issue with field tests or other subsequent evidence: "...absent reasonable suspicion that the subject is intoxicated, the officer cannot require the motorist to submit to sobriety tests State vs. Weaver, 87CA40, 1988 WL 88390 (unreported 7th District, 1988). See also State vs. Dixon, 2000 WL 1760664 (2d Dist. Dec 1,2000). As the United CLEVE M. JOHNSON ATTORNEY AT LAW 495 S. High Street, Suite 400 Columbus, OH 43215-5058 FAX (614) 358-6633 States Supreme Court put it, the detention of a person: " must be temporary and last no longer than is necessary to effectuate the purpose of the stop." Florida v. Royer, 460 U.S. 491, 500 (1983). Thus, any detention beyond that necessary to cite the defendant for the headlight light violation was illegal. The officer must have reasonable suspicion to believe the defendant was under the influence before he can be detained for 8

field tests. Even if it is assumed arguendo that the defendant may not have performed perfectly on the field "tests", the officer had no legal authority to administer those tests in the first place. Thus, the issue is not whether [the officer] had the right to take [the defendant] into custody, but whether he had the right to administer field sobriety tests. If he did, we recognize that the results of those tests afforded probable cause for the subsequent administration of a breath alcohol test. We cannot distinguish this case from State v. Spillers (March 24, 2000), Darke App. No. 1504, unreported, in which we held that "de minimus" lane violations, combined with a slight odor of an alcoholic beverage and the admission to having consumed "a couple" of beers, were not sufficient to justify the administration of field sobriety tests. The mere detection of an odor of alcohol, unaccompanied by any basis, drawn from the officer's experience or expertise, for correlating that odor with a level of intoxication that would likely impair the subject's driving ability, is not enough to establish that the subject was driving under the influence. Nor is the subject's admission that he had had one or two beers. State vs. Dixon, 2000 WL 1760664 page 2 (2d Dist. Dec 1,2000) emphasis added. By asking questions irrelevant to the purpose of the stop, the officer impermissibly expanded the length and the scope of the investigative stop Because the scope of the detention, was not carefully tailored to its underlying justification subsequent evidence was obtained in violation of the Fourth Amendment. See State v. Brown, 183 Ohio App.3d 337, 916 N.E.2d 1138, 2009- Ohio-3804 (Ohio App. 6 Dist. Jul 31, 2009). CLEVE M. JOHNSON ATTORNEY AT LAW 495 S. High Street, Suite 400 Columbus, OH 43215-5058 FAX (614) 358-6633 We note that this probable cause determination, like all probable cause determinations, is fact-dependent and will turn on what the officer knew at the time he made the stop. Under this test, it is clear that the courts may not determine whether there was probable cause by looking at events that occurred after the stop. Dayton v. Erickson, 76 Ohio St.3d 3, 10; 665 N.E.2d 1091, 1096; 1996-Ohio-431 (1996). 9

Compliance with 4511.191 The provisions of Ohio Rev. Code 4511.191 are not applicable unless the defendant was validly arrested by an officer having reasonable grounds to believe the defendant was operating a vehicle while under the influence of alcohol and/or drugs of abuse and was properly advised of the Ohio implied consent provisions. The warning, documentation and other provisions of Ohio Rev. Code 4511.191 must also be complied with. When implied consent warnings are misstatements of the law, consent is involuntary and such evidence is unconstitutionally obtained under the Fourth Amendment. Therefore the defendant's alcohol test must be suppressed. State vs. Taggart, Washington App. No. 86 CA 21 (August 29, 1987) unreported.. Breath Test Before the results of a breath alcohol test given a defendant are admissible in evidence, it is incumbent upon the state to show that the sample was withdrawn by a qualified individual, that it was analyzed in accordance with the Ohio Department of Health Regulations and that it was withdrawn within the three hour testing limitations of the Ohio Rev. Code 4511.19(D); City of Newark vs. Lucas, 40 Ohio St. 3d 100 (1988); Aurora vs. Kepley, 60 Ohio St. 2d 73 (1979); Cincinnati vs. Sand, 43 Ohio St. 2d 79 (1975); State vs. McCloy, Hamilton App. CLEVE M. JOHNSON ATTORNEY AT LAW 495 S. High Street, Suite 400 Columbus, OH 43215-5058 FAX (614) 358-6633 Nos. C-830965, C-830966, C-830967 (October 10, 1984). It is also submitted that the evidence will be insufficient to show that the officer requested the defendant to submit to the chemical testing within two hours as required by Ohio Rev. Code 4511.192. (A). Note that under the preceding subsection, while the time for withdrawing the sample was change to three hours, the office must still request the defendant to take the test within two hours. This is so because the defendant must submit to the officer s request 10

within two hours. This cannot be done unless the officer requests the defendant to test within two hours. Note also that in the case of commercial driver s license holders (even those in private vehicles), the time limit is still two hours for withdrawing the sample under 4506.17(B). Specifically, all of the requirements of the above numbered paragraphs must be met, which paragraphs are incorporated by reference here. Furthermore, under State v. Burnside, 100 Ohio St.3d 152, 797 N.E.2d 71, 2003-Ohio-5372 (2003): A court infringes upon the authority of the Director of Health when it holds that the state need not do that which the director has required. Such an infringement places the court in the position of the Director of Health for the precise purpose of second-guessing whether the regulation with which the state has not complied is necessary to ensure the reliability of the alcohol-test results. To avoid usurping a function that the General Assembly has assigned to the Director of Health, however, we must limit the substantialcompliance standard set forth in Plummer to excusing only errors that are clearly de minimis. Consistent with this limitation, we have characterized those errors that are excusable under the substantialcompliance standard as minor procedural deviations. Id, 100 Ohio St.3d 159, 797 N.E.2d 77 (emphasis added). Machine Malfunctions and the Conflict Between Ohio s Regulatory Process and the Constitution The scientific validity of the foundational regulations for breath testing in CLEVE M. JOHNSON ATTORNEY AT LAW 495 S. High Street, Suite 400 Columbus, OH 43215-5058 FAX (614) 358-6633 Ohio has never been subject to the test of cross examination. Never. Not once. The scientific validity of the breath testing machine used in the case at bar has never been subject to the test of cross examination in any court in Ohio. Never. Not once. If these statements are not absolutely true, let the prosecution produce one single case where this has been allowed. 11

The breath test result should be suppressed until and unless the Sixth Amendment is complied with. As is further set forth below, scientific evidence is not exempt from compliance with the Sixth Amendment. See The June 25, 2009 decision United States Supreme Court in Melendez-Diaz v. Massachusetts, --- U.S. ----, 129 S.Ct. 2527, 174 L.Ed.2d 314, (U.S.Mass. Jun 25, 2009) and Bullcoming v. New Mexico, --- U.S. ----, 131 S.Ct. 2705, 180 L.Ed.2d 610, (U.S.N.M. Jun 23, 2011). Ohio has abandon the traditional all encompassing safeguards which protect defendants against conviction based upon junk science. See State vs. Luke, 2006-Ohio-2306, 2006 WL 1280899 (Ohio App. 10 Dist.). In its place, Ohio has substituted the much more limited regulatory compliance standard as the method for determining scientific reliability and accuracy. The problem is that the regulations are not even close to being all encompassing and they contain glaring deficiencies. Real scientific defects which are not contemplated by the rules are officially ignored. In OVI cases, Ohio has abandon Daubert in favor of what could fairly be called the ostrich view of scientific evidence: If we don t see it, it doesn t exist. The United State Supreme Court has said Ohio has to pull it s head out of the sand. It has to listen to the other side. The abandonment of the traditional standard for the admission of scientific evidence relieved the state of its burden of proof and shifted it to the defendant. CLEVE M. JOHNSON ATTORNEY AT LAW 495 S. High Street, Suite 400 Columbus, OH 43215-5058 FAX (614) 358-6633 The state has never had the burden of proving that the regulations ensure the scientifically reliability of the test. Instead, the scientific reliability of the test, and thus the defendant s guilt, is presumed with an abuse of discretion standard applying to the defendant. As such, in Ohio, the alleged scientific reliability of the breath test has never been established through the adversarial process. The purported scientific 12

reliability of the breath test is based upon bureaucratic fiat, not evidence. The Ohio Department of Health, and indirectly the legislature, assert that the device and the procedure to be used to convict the defendant are scientifically valid. These assertions are submitted to the trier of fact without benefit of confrontation. This is a factual claim and it is being offered to assist the prosecution without ever having been tested by confrontation. It would be disingenuous to claim that the ODH and the legislature are not vouching for the scientific reliability of the testing machine and the foundational requirements in the regulations. If such a thing were to be seriously contended, then the remedy would be simple. Bar the test because scientific reliability has not been established. The law on confrontation is no less clear than the lack of confrontation, especially after the recent United States Supreme Court Decision in Melendez- Diaz, supra. U.S. Const., Amdt. 6. The text of the Amendment contemplates two classes of witnesses-those against the defendant and those in his favor. The prosecution must produce the former; the defendant may call the latter. Contrary to respondent's assertion, there is not a third category of witnesses, helpful to the prosecution, but somehow immune from confrontation. Diaz, supra, 5 (emphasis in original). CLEVE M. JOHNSON ATTORNEY AT LAW 495 S. High Street, Suite 400 Columbus, OH 43215-5058 FAX (614) 358-6633 Respondent claims that there is a difference, for Confrontation Clause purposes, between testimony recounting historical events, which is prone to distortion or manipulation, and the testimony at issue here, which is the resul[t] of neutral, scientific testing. Brief for Respondent 29. Relatedly, respondent and the dissent argue that confrontation of forensic analysts would be of little value because one would not reasonably expect a laboratory professional... to feel quite differently about the results of his scientific test by having to look at the defendant. 13

Dispensing with confrontation because testimony is obviously reliable is akin to dispensing with jury trial because a defendant is obviously guilty. This is not what the Sixth Amendment prescribes. Diaz, supra., 7. The New Mexico Supreme Court stated that the number registered by the gas chromatograph machine called for no interpretation or exercise of independent judgment on Caylor's part. 226 P.3d, at 8 9. We have already explained that Caylor certified to more than a machine-generated number. See supra, at 2710 2711. In any event, the comparative reliability of an analyst's testimonial report drawn from machine-produced data does not overcome the Sixth Amendment bar. This Court settled in Crawford that the obviou[s] reliab[ility] of a testimonial statement does not dispense with the Confrontation Clause. 541 U.S., at 62, 124 S.Ct. 1354; see id., at 61, 124 S.Ct. 1354 (Clause commands, not that evidence be reliable, but that reliability be assessed in a particular manner: by testing [the evidence] in the crucible of cross-examination ). Accordingly, the analysts who write reports that the prosecution introduces must be made available for confrontation even if they possess the scientific acumen of Mme. Curie and the veracity of Mother Teresa. Melendez Diaz, 557 U.S., at, n. 6, 129 S.Ct., at 2537, n. 6. Bullcoming, supra., 131 S.Ct. 2708. It should also be noted that following it s decision in Melendez-Diaz the United States Supreme Court reversed a recent Ohio Supreme Court case due to want of confrontation. See Crager v. Ohio, --- S.Ct. ----, 2009 WL 1841607, 77 USLW 3709 (U.S.Ohio Jun 29, 2009). If the legislature and the Ohio Department of Health are to be allowed to offer scientific evidence against the defendant, then they must be subject to cross examination. If not, their conclusions must be barred. The only real issue CLEVE M. JOHNSON ATTORNEY AT LAW 495 S. High Street, Suite 400 Columbus, OH 43215-5058 FAX (614) 358-6633 is whether the confrontation clause is going to be followed. Will justice be restored to OVI defendants or will Ohio continue to be alone among the states in denying defendants the right to question the scientific validity of what in many cases is the only real evidence against them? It is important to stress at this juncture that the issue is not whether the regulations have been complied with, but whether the regulations themselves 14

are valid scientifically. The question is whether the defendant is entitled to cross examine on the issue of scientific validity, not just on the issue of regulatory compliance. The courts of Ohio (and only the courts of Ohio) have ceded their judicial authority on this issue and given exclusive control of the question to a retired police officer lacking in scientific credentials, to wit: Dean Ward, the head of the Ohio Department of Health s alcohol testing division. It is nonsense to contend that regulatory compliance ensures a valid test. The only reason such nonsense has not been exposed is that Ohio has turned a deaf ear to evidence to the contrary. If contrary evidence is not allowed in the record, then, of course, the breath tester is going to appear to be an excellent device. Some examples of the problems with the regulations are anticipated to arise under the facts of the case at bar. The Datamaster has a self diagnostic function in which the following components of the machine are self tested: the computer, the program, the heater in the sample chamber, the flow detector, the detector, the filters, the quartz standard, the calibration, and the printer. Officers routinely run a self diagnostic check each time a weekly instrument check is done. The way the regulations are written, even if the Datamaster in question fails every single diagnostic test the breath test is still admissible. It should also be noted that the regulations do not even require running this check CLEVE M. JOHNSON ATTORNEY AT LAW 495 S. High Street, Suite 400 Columbus, OH 43215-5058 FAX (614) 358-6633 in the first place. Thus it is nonsense to claim that regulatory compliance ensures scientific reliability. Another problem is the temperature. Rather than saying okay, the self diagnostic feature often lists the temperature as 49c. This is a predominant result for most of the simulation checks. The problem is that the officer s manual indicates that the temperature of the sample chamber is supposed to be 15

50c. See ODH Basic Training Manual p.6. Temperature is generally crucial in this area. For example, The checklist used in this case requires that the simulator solution be within.2 of a degree of the target value. Under the regulations, even if the temperature registered at absolute zero, the test result still is admissible. Likewise if the test result were so high that the defendant would have to be dead to test that high, the test would still come in as scientifically reliable. The regulations simply do not contemplate all possible errors. As such, compliance with the regulations simply does not insure scientific reliability. The courts of Ohio should stop pretending otherwise. Regardless of the validity of the claim that the regulations are deficient, that is not the real issue. The real issue is whether the defendant has a right to confrontation. Even if the regulations are wholly valid from a scientific standpoint, they cannot be used as a substitute for confrontation. Similarly, the test of bureaucratic fiat (i.e. bureaucratic approval of the Datamaster) also could not be substituted for the test of confrontation on the issue if of the Datamaster s scientific validity even if it were perfect. While courts historically have taken judicial notice of scientific issues at some point, even this is improper where testimony has never been adduced on the issue. The defendant asks that either he be afforded his constitutional right to confrontation or that the test be barred. CLEVE M. JOHNSON ATTORNEY AT LAW 495 S. High Street, Suite 400 Columbus, OH 43215-5058 FAX (614) 358-6633 Retrograde Extrapolation ORC 4511.19(A)(1) makes it clear that it is the defendant s alcohol level at the time of the operation which is relevant. The test result only shows the level at the time of testing. It is undisputed from a scientific standpoint that alcohol in the stomach can be digested between the time of operation and the time of 16

testing. Unless testimony is presented to perform retrograde extrapolation back to the time of operation, the test result, without more, should be irrelevant because it is not evidence of the level at the time of operation. For an excellent analysis of these issues see Mata v. State, 13 S.W.3d 1 (Tex. App.--San Antonio 1999), rev'd, 46 S.W.3d 902 (Tex. Crim. App. 2001), opinion on remand, 75 S.W.3d 499 (Tex. App.--San Antonio 2002), vacated, 122 S.W.3d 813 (Tex. Crim. App. 2003). Outdated BMV Form 2255 An outdated form 2255 was used in this case rather than the current BMV 2255 7/12. The old forms have incorrect information regarding such things as CDL consequences and the lengths of the suspensions which vitiates any action taken by the defendant in response to such information. See Eastlake v. Komes, 2010 WL 2171145, 2010-Ohio-2411 (Ohio App. 11 Dist. May 28, 2010). When a person is erroneously advised regarding the consequences of refusing to submit to a chemical test for alcohol, the person's consent is involuntary, and the chemical test is inadmissible. See, State v. Szalai (Ashtabula 1983), 13 Ohio Misc.2d 6; State v. Chard (6th Dist. 1984), unreported, 1984 WL 7788; State v. Gottfried (6th Dist. 1993), 86 Ohio App.3d 106. While Bryan v. Hudson 77 Ohio St.3d 376 (1997) held that reading language on top of 2255 is sufficient to inform the defendant of consequences, the issue of an outdated form was not involved there, but rather a current one which was incorrect as applied to the Δ in that case. Even so, the court in Komes, cited Hudson and did not believe that CLEVE M. JOHNSON ATTORNEY AT LAW 495 S. High Street, Suite 400 Columbus, OH 43215-5058 FAX (614) 358-6633 it dictated a different result. Statements of the Defendant The defendant further contends that custodial statements taken from defendant were obtained in violation of his constitutional rights under the 17

Fourth, Fifth, Sixth and Fourteenth Amendments of the Constitution of the United States and Miranda vs. Arizona, 348 U.S. 436 (1966); Berkemer vs. McCarty, 468 U.S. 240, 104 S. Ct. 3138 (1984); State vs. Buckholz, 11 Ohio St. 3d 24, 462 N.E. 2d 1222 (1984); and State vs. Leach, 102 Ohio St.3d 135, 807 N.E.2d 335, (2004). It is further submitted that any such statements also violate the corpus delecit rule. State vs. Ralston, 67 Ohio App 2d 81 (1979). Nor can the defendant s silence be used against him even if it happens before there is an arrest under State v. Leach, 102 Ohio St.3d 135, 807 N.E.2d 335, 2004- Ohio-2147 (Ohio May 12, 2004). Field Sobriety Exercises In the event that this case proceeds solely on an impaired charge without a per se charge it is submitted that the horizontal gaze nystagmus test as well as the other so called field tests must be suppressed. The case normally cited in support of the admissibility of the horizontal gaze nystagmus test is State vs. Bresson, 51 Ohio St. 3d 123 (1990). It should be noted that Bresson, unlike the case at bar, was a per se case. The syllabus specifically provides that "... testimony may not be admitted to show what the exact alcohol concentration level of the driver was for purposes of R.C. 4511.19(A)(2), (3) or (4)." Id., 123. The NHTSA manual indicates that "Research shows that if four or more [HGN] clues are evident, it is likely that the suspects blood alcohol CLEVE M. JOHNSON ATTORNEY AT LAW 495 S. High Street, Suite 400 Columbus, OH 43215-5058 FAX (614) 358-6633 concentration is above 0.10. The reliability of this four-or-more clues criterion is 77%." DWI Detection And Standardized Field Sobriety Testing, Student Manual at VII-6 (1995). See also page VII-6 of the 2000 and Chapter VIII p11 last of the 2002 manual to the same effect. Similarly, the training manuals tie passing or failing the one leg stand test to a likelihood of exceeding the.100 and.08 per se level. See 1995 Manual VIII 24 18

3d from bottom ], 2000 Manual VIII-14 middle, 2002 VIII p14 3rd from bottom. Likewise, with the walk and turn tests. See 1995 Manual. VIII 21 paragraph 2, 2000 Manual, VIII-12 3, and 2002 VIII p11 7. The NHTSA scientists who did the research upon which the manual is based also agree that performance on the the FST s is not indicative of impairment: Many individuals, including some judges, believe that the purpose of a field sobriety test is to measure driving impairment. For this reason, they tend to expect tests to possess face validity, that is, tests that appear to be related to actual driving tasks. Tests of physical and cognitive abilities, such as balance, reaction time, and information processing, have face validity, to varying degrees, based on the involvement of these abilities in driving tasks; that is, the tests seem to be relevant on the face of it. Horizontal gaze nystagmus lacks face validity because it does not appear to be linked to the requirements of driving a motor vehicle. The reasoning is correct, but it is based on the incorrect assumption that field sobriety tests are designed to measure driving impairment. Stuster, Jack and Burns, Marcelline Validation of the Standardized Field Sobriety Test Battery t BAC s Below 0.10 Percent Final Report Submitted to: U.S. Department of Transportation, National Highway Traffic Safety Administration, emphasis added. (Reprinted in the Appendix of the 2004 and 2006 NHTSA instructor s manuals in Session VIII) Ohio courts have refused to recognize that exceeding the per se levels provides any evidence as to impairment. If exceeding the per se levels is not relevant to an impaired charge, then a test designed to guess at the per se levels should not be relevant either. This issue normally arises in the context of the per se case. In cases such as State vs. Boyd, 18 Ohio St. 3d 30 (1985) and Whitehall vs. Lee, (September 30, CLEVE M. JOHNSON ATTORNEY AT LAW 495 S. High Street, Suite 400 Columbus, OH 43215-5058 FAX (614) 358-6633 1993) 93AP-548 unreported, (1993 opinions 4256) the courts have held that evidence of a defendant's sobriety is inadmissible in a per se case to challenge the result produced by a breath testing machine. The rational expressed in these cases is that in a per se case whether or not one is under the influence is not in issue. The defendant is merely charged with having a prohibited concentration of alcohol in his or his system. As such, evidence of sobriety is 19

irrelevant to a per se charge because it does not have any bearing on a matter in issue in the case. Being under the influence is not an element of the offense and the state does not have to prove this. In so ruling, the courts must of necessity tacitly refuse to take judicial notice that a person with an alcohol level meeting or exceeding.100 would be impaired. If the courts took judicial notice that one testing over the per se limit would show symptoms of impairment, then evidence of sobriety would raise questions as to whether the machine yielded the correct result and would thus be directly relevant evidence (if all persons at or over.100 show signs of impairment and if the defendant shows no sign of impairment, then the machine must be wrong). A change in this position would mean that defendants could challenge test results with evidence of sobriety. Thus, even in the most optimistic case for the prosecution, HGN testimony if admitted in a per se case at best indicates that the defendant has a 77% chance of testing above 0.100. Since this fact, even if proven by a breath test, is, without more legally irrelevant in a impaired case under Boyd. and since no more specific information as to level is admissible under Bresson, the only possible conclusion is that HGN evidence is legally irrelevant in an impaired case. It is submitted that the results of the so called "field sobriety tests" should not be admitted. In the first syllabus of State v. Homan, 89 Ohio St.3d 421 (2000), the Ohio Supreme Court held that: CLEVE M. JOHNSON ATTORNEY AT LAW 495 S. High Street, Suite 400 Columbus, OH 43215-5058 FAX (614) 358-6633 1. In order for the results of a field sobriety test to serve as evidence of probable cause to arrest, the police must have administered the test in strict compliance with standardized testing procedures. Id, 421. The court also acknowledged that the National Highway Traffic Safety Administration manuals "...form the basis for manuals used by state law enforcement agencies across the country. Id., 424 footnote 4. Until and unless the prosecution can demonstrate that each and every alleged field sobriety test was administered in the prescribed manner, all such 20

evidence must be suppressed under Homan. Note also that it is the prosecution s burden to prove that any tests...were conducted in a standardized manner as provided by the National Highway Traffic Safety Administration. State v. Nickelson, 2001 WL 1028878 p. 9 (Ohio App. 6 Dist., Jul 20, 2001). See also State v. Pingor, ) (NO. 01AP-302) 2001 WL 1463774 (Ohio App. 10 Dist., Nov 20, 2001where Nickelson was cited favorably by the Franklin County Court of Appeals. To the same effect, see also State v. Shepard, 2002 WL 506674 (Ohio App. 2 Dist., Apr 05, 2002) (NO. 2001-CA- 34). Note that the anti-homan legislation is discussed below. There is absolutely no logical reason for admitting the HGN at trial in an impaired case. As was mentioned above, the NHTSA research expressly disclaims that the HGN has any relation to impairment, but rather only to the probability of the defendant testing above a prohibited level. Under these circumstances, the HGN is simply not relevant to an impaired case. Furthermore, under State v. Grizovic, 177 Ohio App.3d 161, 894 N.E.2d 100, 2008-Ohio-3162 (Ohio App. 1 Dist. Jun 27, 2008) even the manual statement cannot be given to the jury. While the defendant s performance on other FST s may be of some common sense value to a juror, the same cannot be said of the HGN. CLEVE M. JOHNSON ATTORNEY AT LAW 495 S. High Street, Suite 400 Columbus, OH 43215-5058 FAX (614) 358-6633 The manifestation of nystagmus under different circumstances is also a scientific theory that would not be known by the average person. HGN testing is based on a scientific principle not generally known by lay jurors. State v. Robinson, 160 Ohio App.3d 802, 812-813, 828 N.E.2d 1050, 2005- Ohio-2280 (Ohio App. 5 Dist. May 05, 2005). If the HGN is admitted in an impaired case, this can be nothing more than an invitation to the jury to speculate. What are they supposed to think that this means. They don t have any common sense understanding and we won t tell 21

them what the manual says. If the jury is told that the defendant got 6 wrong out of 6 or even 4 out of 6, the juror s thought process is probably something like this: Since the judge let us hear this, it must mean something. Since the officer arrested him after doing the test, he must have failed. If you get 6 wrong out of 6 that is failing on any test I have ever seen. Therefore the jury probably thinks defendant has scientifically been proven impaired. There simply is no rationale for admitting the HGN in an impaired case. Unfortunately, in the early days of FST s, the Ohio Supreme Court included some language in an opinion which makes no sense. The following citation is probably dicta and is also probably factually distinguishable in an impaired case, since the citation below was made in a per se case. Nevertheless, it should be noted that the court indicated that: "We hold that the HGN test has been shown to be a reliable test, especially when used in conjunction with other field sobriety tests and an officer's observations of a driver's physical characteristics, in determining whether a person is under the influence of alcohol. State v. Bresson, 51 Ohio St.3d 123, 129, 554 N.E.2d 1330 (Ohio May 30, 1990). The problem with this quote is that the notion that the HGN is has any bearing on impairment was apparently pulled out of thin air. NHTSA scientists expressly disclaim this. Bresson is dicta based upon a mistake of fact. The supreme court assumed without any proof and contrary to the science of the matter that the HGN provides proof of impairment. It then elevated this CLEVE M. JOHNSON ATTORNEY AT LAW 495 S. High Street, Suite 400 Columbus, OH 43215-5058 FAX (614) 358-6633 unscientific assumption at least to the level of dicta. The language of the NHTSA scientists quoted above bears repeating. It is an: incorrect assumption that field sobriety tests are designed to measure driving impairment., supra. 22

Insofar as trial evidence is concerned, once an officer testifies to smelling an odor of alcohol, admitting the FST s to prove consumption is cumulative evidence and has little to no additional probative value. Under these circumstances, the real reason for seeking to admit the FST s is to lend a false aura of scientific reliability to otherwise marginal evidence. It should also be kept in mind that drinking and driving is legal and that proving a smell of alcohol establishes nothing illegal. Any slight probative value on the issue of consumption is vastly outweighed by the prejudicial effect of the jury being lead to believe that impairment has been scientifically determined. Thus the HGN is inadmissible under Evidence Rule 403(A). Daubert and Miller vs. Bike It is further submitted that under the particular facts and circumstances of this case, both the so called field tests and the chemical test(s) are unreliable and therefore inadmissible under the standard set forth in Daubert v. Merrill Dow Pharmaceuticals, Inc. 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed. 2d 469 (1993), and Miller v. Bike Athletic Co., 80 Ohio St.3d 607 (1998). Under these cases, the court must assume an expanded role as gatekeeper over questionable scientific evidence. While it is true that the 10 th district found that Vega made Daubert inapplicable to OVI cases in State v.luke, (May 11, 2006), Franklin CLEVE M. JOHNSON ATTORNEY AT LAW 495 S. High Street, Suite 400 Columbus, OH 43215-5058 FAX (614) 358-6633 App. No. 05AP-371, 2006 WL 1280899; it is submitted that the Luke decision is erroneous and that the rational of the Ohio Supreme Court and the United States Supreme Court is correct. 4511.19(D) Is Unconstitutional On Equal Protection Grounds 23

The equal protection clauses of both the Ohio and the United States Constitutions are flagrantly violated by 4511.19(D) [SB 163, eff. 4/9//03]. Amended 4511.19(D)(4)(b) (ii) provides as follows: The prosecution may introduce the results of the field sobriety test so administered as evidence in any proceedings in the criminal prosecution or juvenile court proceeding. In its rush to satisfy the Prosecuting Attorney s association, the lame duck legislature abandon all pretense of fairness. The obvious defect here is that only the prosecution is allowed to introduce the result of the test. In a substantial compliance case, if the defendant passes the test and the prosecutor does not seek to introduce the test result, the defendant is not given the same right as the prosecution to introduce the result. The bill gives the prosecution, but not the defense, the right to introduce exculpatory evidence. 4511.19(D) Is Unconstitutional On Due Process Grounds The due process clauses of both the Ohio and the United States Constitutions are also violated by 4511.19(D) [SB 163, eff. 4/9//03]. As was set forth above, the Ohio Supreme Court in Homan held that: "When field sobriety testing is conducted in a manner that departs from established methods and procedures, the results are inherently unreliable." State v. Homan (2000), 89 Ohio St.3d 421, 424. CLEVE M. JOHNSON ATTORNEY AT LAW 495 S. High Street, Suite 400 Columbus, OH 43215-5058 FAX (614) 358-6633 A statute which purports to make inherently unreliable evidence admissible is fundamentally unfair and a due process violation. Improper Attribution Of Scientific Reliability To Field Exercises Even if the results of the so called field tests are admitted, they should not be referred to as tests. These tests consisted of one or more of the following: 24

walking heel to toe, standing on one leg, touching the finger to the nose, and reciting the ABC s. It is anticipated that the prosecution will attempt to expressly or by implication cause the jury to believe that these physical exercises are scientifically valid tests, that the defendant failed the test, and that, as such, it has been scientifically demonstrated that the defendant was under the influence of alcohol. A review of the case law in Ohio reveals a thread of decisions supporting the proposition that field sobriety tests' are admissible as nonscientific evidence because they involve observations within the common experience of the ordinary citizen. State vs. Nagel 30 Ohio App.3d 80 (1986). While the while the aforementioned tests may be admissible as nonscientific evidence, the prosecution should be prohibited from attempting to attach significance to the defendant's performance on these exercises which go beyond the common experiences of the ordinary citizen. To permit the prosecution or the officer to make reference to the exercises by using terms such as 'test", pass, fail". "clues", or "points, creates a potential for enhancing the significance of the observations in relationship to the ultimate determination of impairment. Such terms give these lay observations an aura of scientific validity which has not been demonstrated to the court through proper expert scientific CLEVE M. JOHNSON ATTORNEY AT LAW 495 S. High Street, Suite 400 Columbus, OH 43215-5058 FAX (614) 358-6633 testimony. To allow the prosecution to imply an unproven scientific validity to these tests would violate Evidence Rule 403(A) since it would mislead the jury and since the danger of unfair prejudice would be outweighed by the probative value of using such terms. In the State of Florida, extensive hearings were conducted in 350 consolidated cases on this exact issue. See Florida vs. Meador, 674 So.2d 25

(1996). Expert testimony on field sobriety testing was admitted by the defense and the state. The state public defender s office consolidated all of its DUI cases on the issue as well. On May 15, 1996. the District Court of Appeals of Florida unequivocally concluded that: While psychomotor tests are admissible, we agree with the defendants that any attempt to attach significance to defendants' performance on these exercises beyond that attributable to any of the other observations of a defendant's, conduct at the time of arrest could be misleading to the jury and thus tip the scales so that the danger of unfair prejudice would outweigh its probative value. Id, at 832. Therefore. the aforementioned terms must be avoided to minimize the danger that the jury will attach greater significance to the results of the field sobriety exercises than to other lay observations of impairment. In short, while it may be argued that field sobriety exercises fall within the ambit of a juror's common observations, the prosecution should not be permitted to attach an aura of science to his or her observations by using enhancing terms such as test, fail, pass, clues", results", points or words of similar import. The Intoxilyzer 8000 Rules Make the Datamaster Result Inadmissible A new regulatory provision makes the test clearly inadmissible if either the CLEVE M. JOHNSON ATTORNEY AT LAW 495 S. High Street, Suite 400 Columbus, OH 43215-5058 FAX (614) 358-6633 operator or the senior operator/ calibration officer has been authorized to use an Intoxilyzer 8000. OAC 3701-53-09(D) provides that an operator who has previously been issued an operator access card for an Intoxilyzer 8000 shall use only those evidential breath testing instruments for which they have been issued an operator access card As is shown immediately below, there are no access 26

cards for either the Datamaster or the Intoxilyzer 5000, thus the rule clearly prohibits Intoxilyzer 8000 operators from using any other machines machines. The key distinction here is the difference between permits and operator access cards. OAC 3701-53-09(D) provides in part that Individuals desiring to function as operators using instruments listed under paragraph (A)(3) of rule 3701-53-02 of the Administrative Code shall apply to the director of health for operator access cards The only instrument listed in the aforementioned paragraph (A)(3) is the Intoxilyzer 8000 (OH-5). Operators of the other authorized machines get permits rather than operator s cards. See OAC 3701-53-09(B). Note that there is another Intoxilyzer 8000 that does have a permit, the OH-2. These machines; however, are useable only by natural resources officers in watercraft situations. It should also be noted that there is a fundamental difference between senior operator s certificates and operator access cards. The senior operator s certificate is just a piece of paper. The operator access card for the 8000 is meant to be swiped into the machine to enter operator information and allow access. There is no such card for the Datamaster. Another indication that cards are not the same thing as permits is that, unlike permits, operator access cards do not expire. See OAC 3701-53-09(E). Requiring 8000 operators to use those machines exclusively was not a CLEVE M. JOHNSON ATTORNEY AT LAW 495 S. High Street, Suite 400 Columbus, OH 43215-5058 FAX (614) 358-6633 drafting error. It was intentional. The 8000 s are linked to a central database and allow the state to collect information which could be used for a variety of law enforcement and legislative purposed. The idea was to discourage the retention and use of the old machines by making their results inadmissible. The evidence will show that the operator and/or the calibration (instrument check) officer in the case at bar has been issued an operator access 27

card for the Intoxilyzer 8000. Thus neither were authorized to use the machine the defendant was tested on. Despite the actual intent of the drafters to do precisely what they did, it may be argued that the courts should engage in after the fact redrafting of the regulations based upon the theory that the drafters would not have intended the result in this case. It would be incorrect to argue that the drafters must have intended a different result and thus the regulations should be construed this way. Intent can play no part in interpretation unless there is ambiguity. Under Ohio Rev. Code 1.49, all of the words of the statute must be given effect unless they are ambiguous. Ambiguity exists only if more than one meaning can be given to the words in question. A court may interpret a statute only where the words of the statute are ambiguous. State ex rel. Celebrezze v. Allen Cty. Bd. of Commrs. (1987), 32 Ohio St.3d 24, 27, 512 N.E.2d 332, 335. Ambiguity exists if the language is susceptible of more than one reasonable interpretation. State ex rel. Toledo Edison Co. v. Clyde (1996), 76 Ohio St.3d 508, 513, 668 N.E.2d 498, 504. If a statute is ambiguous, the court, in determining the intent of the General Assembly, may consider several factors, including the object sought to be obtained, the legislative history, and other laws upon the same or similar subjects. R.C. 1.49. Finally, statutes defining criminal offenses and penalties are to be strictly construed against the state and liberally in favor of the accused. R.C. 2901.04(A). State v. Jordan, 89 Ohio St.3d 488, 492; 733 N.E.2d 601, 2000-Ohio-225 (Ohio Aug 30, 2000). It should also be noted in passing that this court has held that CLEVE M. JOHNSON ATTORNEY AT LAW 495 S. High Street, Suite 400 Columbus, OH 43215-5058 FAX (614) 358-6633 the rules that apply to statutory construction also apply to regulatory construction. See State vs. Reedy, 2006-Ohio-1212, 2006 WL 648861 (10 th District). The case of Fairborn v. DeDomenico, 114 Ohio App.3d 590, 683 N.E.2d 820 (Ohio App. 2 Dist. Oct 04, 1996) provides a good illustration of why courts 28

cannot just ignore the plain meaning of a statute to implement what is believed to be the intent of the legislature. In DeDomenico, the court construed the former expungement statute which prohibited expungement of hit and run offenses charged under the state code but did not include offenses charged under municipal codes. The trial court held that an expungement could not be granted. The court of appeals reversed concluding that the statute clearly did not prohibit expungement of municipal code hit and run violations. As in the case at bar, the issue probably wasn t so much that the statue was hard to understand. The statute clearly did not speak to municipal codes. The trial court more likely believed that the legislature intended to prohibit such expungements but made a mistake in drafting. The trial court looked to the perceived intent of the legislature rather than the plain words of the statue and decided to assume the legislative power and fix the statute on its own without involving the legislature. In reversing, the Court of Appeals held that where the wording of the statue was clear, the trial court had to follow the statue as written and could not interpret the statute to prohibit expungement of municipal code violations on the theory that this must have been what the legislature meant to do. CLEVE M. JOHNSON ATTORNEY AT LAW 495 S. High Street, Suite 400 Columbus, OH 43215-5058 FAX (614) 358-6633 Another principle of statutory construction, verbis standum ubi nulla ambiguitas, controls our disposition here. Where there is no ambiguity, one must abide by the words. See, e.g., State v. Waddell (1995), 71 Ohio St.3d 630, 631, 646 N.E.2d 821, 821-822; State ex rel Herman v. Klopfleisch (1995), 72 Ohio St.3d 581, 584, 651 N.E.2d 995, 997-998. R.C. 1.49 outlines the appropriate factors for a judicial determination of legislative intent, but authorizes such a determination [i]f a statute is ambiguous. R.C. 1.49. R.C. 1.49 does not, however, authorize judicial inquiry into legislative intent where the statute is unambiguous. See Ohio Civ. Serv. Emp. Assn. v. Univ. of Cincinnati (1982), 3 Ohio App.3d 302, 306, 3 OBR 349, 352-353, 444 N.E.2d 1353, 1357-1358. Courts may not construe words that need no construction or interpret language that needs no interpretation. State v. Rose (1914), 89 Ohio St. 383, 389, 106 N.E. 50, 52, cited in State v. Taniguchi (1995), 74 Ohio St.3d 154, 656 N.E.2d 1286. Under Ohio law, when a 29

statute is unambiguous, a court must only read and follow it. Wachendorf v. Shaver (1948), 149 Ohio St. 231, 36 O.O. 554, 78 N.E.2d 370. DeDomenico, Supra, 593. The 10 th District Court of Appeals recently reaffirmed the longstanding principle that if the statute is unambiguous, the legislative intent cannot be inquired into: As in any case of statutory construction, the paramount goal is to ascertain and give effect to the legislature's intent in enacting the statute. Brooks v. Ohio State Univ. (1996), 111 Ohio App.3d 342, 349, 676 N.E.2d 162, 166 (citing Featzka v. Millcraft Paper [1980], 62 Ohio St.2d 245, 16 O.O.3d 280, 405 N.E.2d 264). In so doing, however, the court must first look to the plain language of the statute itself to determine the legislative intent. State ex rel. Burrows v. Indus. Comm. (1997), 78 Ohio St.3d 78, 81, 676 N.E.2d 519, 521; In re Collier (1993), 85 Ohio App.3d 232, 237, 619 N.E.2d 503, 506. ( Under Ohio law, it is a cardinal rule that a court must first look to the language of the statute itself to determine the legislative intent. ) Thus, if the language used in a statute is clear and unambiguous, the statute must be applied as written and no further interpretation is necessary. Burrows, supra. It is only where the words of a statute are ambiguous, uncertain in meaning, or conflicting that a court has the right to interpret a statute. Id. In re Adoption of Baby Boy Brooks, 136 Ohio App.3d 824, 828-829 737 N.E.2d 1062 (Ohio App. 10 Dist. Mar 21, 2000). Before asking what did the drafters intend, it must first be asked is the meaning ambiguous? There are two reported cases which consider the operator access card issue. In State vs. Castle, --- N.E.2d ----, 2012 WL 1556478, 2012 -Ohio- 1937, Ohio Mun., April 24, 2012 (NO. 2011 TRC 145779, CLEVE M. JOHNSON ATTORNEY AT LAW 495 S. High Street, Suite 400 Columbus, OH 43215-5058 FAX (614) 358-6633 Brandt J.) the court found the test inadmissible and agreed with the position taken by the defendant in the case at bar. The other case, State v. Hudepohl, 166 Ohio Misc.2d 1, 2011 -Ohio- 6917, 961 N.E.2d 276 (M.C.), took the opposite position. The basic problem with Hudepohl is that it did not discuss either 30

ambiguity or conflict. It just assumed that it had the power to interpret without discussing or finding either. Was the court in Hudepohl really interpreting an ambiguous regulation or was it redrafting a regulation it perceived to be mistaken? Does the opinion indicate that the words of the regulation are not clear? Does the court struggle to determine why particular words were chosen? Was it searching for meaning? Instead, does the court indicate that the result is absurd and contrary to the fair, impartial, speedy, and sure administration of justice. Hudepohl, id 11 (emphasis added). The court does claim that there are two possible interpretations of the regulation ( 12). The first interpretation is really just applying the regulation as written. The second so called option (Hudepohl 12) does not involve a second meaning for the words of the regulation. No such alternate meaning is either set forth or discussed. The second option is in reality just judicial redrafting of a clear regulation so that the result will not seem absurd to the court and calling it a meaning. The court does not explain the linguistic slight of hand that allows it to interpret the actual wording of the regulation set forth below to the new meaning in the succeeding paragraph. Nor does the court expressly set out this new meaning. It is submitted, however, that the formulation in the next CLEVE M. JOHNSON ATTORNEY AT LAW 495 S. High Street, Suite 400 Columbus, OH 43215-5058 FAX (614) 358-6633 paragraph is a fair description of what the Hudepohl court has done. Current OAC 3701-53-09(D) provides that operators who have previously been issued operator access cards for the Intoxilyzer 8000 shall use only those evidential breath testing instruments for which they have been issued an operator access card Id, (emphasis added). 31

The Hudepohl court and the prosecution would redraft this regulation to provide that operators who have previously been issued operator access cards for the Intoxilyzer 8000: shall use not only those evidential breath testing instruments for which they have been issued an operator access card; but also, any instruments for which they have been issued permits When someone modifies language with the word not, they are not trying to draw out the true meaning of the original word, they are trying to change it. Therein lies the problem for the appellant. State v. Vega, 12 Ohio St.3d 185, 465 N.E.2d 1303 (1984), says the Ohio Department of Health makes the regulations, not the court. To get to the meaning they want, they need to amend the regulation. Courts simply do not have this power under Vega. While the defense bar would be more than happy to see Vega struck down, if Vega is to stand, shouldn t it be applied even handedly to both sides? The not only and but also in the paragraph above were not lurking in some equivocal phrase in the original text of the regulation. The court simply decided to redraft the regulation to mean the opposite of what it actually says because it thought the regulation as written was absurd. It decided to ignore the actual wording of the regulation and to look to what it speculated the purpose of the regulation was. The problem was not that the regulation was ambiguous. The court simply thought that the clear wording of the regulation CLEVE M. JOHNSON ATTORNEY AT LAW 495 S. High Street, Suite 400 Columbus, OH 43215-5058 FAX (614) 358-6633 led to the wrong result. Even if it is assumed arguendo that following the actual words of the regulation does lead to an absurd result, as the court in Hudepohl maintained, that does not thereby render it ambiguous. Ambiguity and absurdity are different concepts and neither term necessarily entails the other. If redrafting is 32

what the state wants, it should contact the Ohio Department of Health, not the court. For an example of a case applying this rationale in the context of OVI regulations, see State v. Ripple, 70 Ohio St.3d 86, 637 N.E.2d 304, 1994-Ohio- 170 (Ohio Aug 24, 1994). While Ripple, has been superceded by subsequent regulations and statutes, the principle for which it stands is still sound. In Ripple, the problem was that the regulations then in effect failed to provide an approved method for drug analysis. The prosecution urged the court to fix the regulatory flaw by allowing a method of analysis not set forth by regulation. The Ohio Supreme Court declined to do this. In its words, the law was clear, unmistakable. Id, 89. It held that the law must be strictly interpreted Id, 88. It reversed the lower court and found the test inadmissible holding that: absent approval of methods by the Director of Health pertaining to the testing of bodily substances for drugs, a chemical analysis purporting to indicate the presence of drugs in an accused is inadmissible. Id, 89. In short, the regulation clearly makes the test result in the case at bar inadmissible and the court does not have the power to unilaterally rewrite the rule and change its meaning. What this issue really comes down to is that the prosecution must pick its poison. If the regulations are to be followed as written, then the test in this case CLEVE M. JOHNSON ATTORNEY AT LAW 495 S. High Street, Suite 400 Columbus, OH 43215-5058 FAX (614) 358-6633 is out. If the court is to follow Hudepohl and give courts the power to rewrite regulations perceived to be unfair or absurd, then the appellant is in essence asking this court to overrule the Ohio Supreme court s decision in its favorite breath testing case, State v. Vega, 12 Ohio St.3d 185, 465 N.E.2d 1303 (1984), and once again make the regulators subservient to the court. This, in turn would open the door to challenges to current regulations such as lack of dual 33

testing on the grounds that in light of current scientific practices, single testing is absurd and unfair. There is also a very simple solution to this problem that does not even require rewriting the regulations. If the Ohio Department of Health is ready to admit that the rollout of the Intoxilyzer 8000 did not work out as anticipated, they can simply cancel the officer s operator access card and things can go back to the way they were before. On the other hand, if they are pleased with the rollout, they can stick with the original plan and cancel his Datamaster permit. Either way, this is a decision that is best made by the regulators and not by this court. Specificity of Motion The actual motion which was approved by the Ohio Supreme Court in State vs. Shindler, 70 Ohio St. 3d 54 (1994) is attached and the averments therein are hereby incorporated. It is far less specific than this motion. If the prosecution makes a representation to this court that the motion in this case is less specific than the one allowed in Shindler, it is only right that the prosecution should show the court what part of the attached motion is more specific than the one in this case. Since the attached motion has been incorporated, by definition, this should be impossible. Accordingly, any prosecution objections should, by CLEVE M. JOHNSON ATTORNEY AT LAW 495 S. High Street, Suite 400 Columbus, OH 43215-5058 FAX (614) 358-6633 definition, be without merit. Similarly, a ruling for the prosecution would, of necessity require this court to overrule the Ohio Supreme Court. Since the motion the Supreme Court approved has been incorporated, this court cannot do what the government asks without making a finding which is diametrically opposed to that in Shindler. 34

It should also be noted here that at the time this motion was required to be filed, full discovery had not been provided thereby making a complete motion impossible. This is the fault of the government, not the defendant. The defendant should not be penalized for a problem created by the state. Furthermore, the basis for this motion is the Fourth Amendment to the Constitution. While a specificity objection might seem like a clever tactical maneuver, such an objection is at best rule based. If the Constitution is to be disregarded based on a tactical maneuver, the prosecution should first point out what part of the Constitution allows the Fourth Amendment to be overridden by rule of court. In addition, even if it is assumed arguendo that this motion is insufficient, the state waives this argument by failing to file a memorandum contra: While Crim.R. 47 requires a defendant to state his grounds for a motion to suppress with particularity, the state waives this issue if it is not raised in opposition to a defendant's motion to suppress. State v. Mayl, 154 Ohio App.3d 717, 2003- Ohio-5097, 798 N.E.2d 1101, 22. State v. O'Neill, 175 Ohio App.3d 402, 411; 887 N.E.2d 394, 2008-Ohio-818, 33 (Ohio App. 6 Dist. Feb 29, 2008). Presumably any such memorandum contra must also be specific as well. Respectfully Submitted, CLEVE M. JOHNSON ATTORNEY AT LAW 495 S. High Street, Suite 400 Columbus, OH 43215-5058 FAX (614) 358-6633 Cleve M. Johnson JOH 28/0002367 Attorney for Defendant 495 South High Street, Suite 400 Columbus, Ohio 43215-5058 Fax (614) 358-6633 35

CERTIFICATE OF SERVICE This is to certify that a copy of the foregoing document with attachment was served upon Lara N. Baker, Columbus City Prosecutor, attorney for plaintiff, 375 South High Street, Columbus, Ohio 43215, by facsimile transmission, on October 7, 2009. Cleve M. Johnson JOH 28/0002367 Attorney for Defendant 495 South High Street, Suite 400 Columbus, Ohio 43215-5058 Fax (614) 358-6633 CLEVE M. JOHNSON ATTORNEY AT LAW 495 S. High Street, Suite 400 Columbus, OH 43215-5058 FAX (614) 358-6633 36

State of Ohio IN THE MUNICIPAL COURT FOR FRANKLIN COUNTY, OHIO, CRIMINAL DIVISION -vs.- XXXXXX Plaintiff Case no.: 2008 TRC XXXXXX JUDGE VANDERKARR Defendant MOTION TO COMPEL DISCOVERY Now comes defendant, through counsel, and hereby moves this court for an order requiring the prosecution to provide discovery pursuant to Rule 16 of the Ohio Rules of Criminal Procedure. The defendant further moves for an order prohibiting the prosecution from presenting, or in any way relying upon, any evidence at trial which was not provided in discovery and for such other sanctions as may be appropriate. MEMORANDUM Cleve M. Johnson JOH 28/0002367 Attorney for Defendant 495 South High Street, Suite 400 Columbus, Ohio 43215-5058 The defendant filed a timely discovery demand on July 31, 2009. In response the prosecution provided copies of the following: CLEVE M. JOHNSON ATTORNEY AT LAW 495 S. High Street, Suite 400 Columbus, OH 43215-5058 FAX (614) 358-6633 A multi page Ohio State Highway Patrol Initial Incident Report. A cover sheet entitled Plaintiff s Response to Request For Discovery A cover sheet entitled Franklin Municipal Prosecutor Package The discovery package cover sheet the accident report black and white photocopies of eight photographs a constitutional rights waiver form the defendant s traffic record

the arrest information form and officer s narrative report (U-10-100) the alcohol influence report form/impaired Driver Report, Rights Waiver, and Interview Sheet the Alcohol/Drug Influence Report the impaired driver report the Datamaster Evidence Ticket the Datamaster Subject Test Form the Intoxilyzer Evidence Ticket the Intoxilyzer Subject Test Form the vehicle impound/inventory form the BMV 2255 the defendant s driver s license the ticket and summons. The Request for Laboratory Examination An Evidence and Property Inventory showing sample vials The lab test result the affidavit of the laboratory analyist a property receipt form a copy of a subpoena A search warrant and affidavit A multi page Person Detail from the officer of the Attorney General The defendant s fingerprints An Ohio Attorney General s Vehicle Detail A witness list The DUI Investigation Field Notes A Form 1209 Impound Vehicles System Vehicle Search The instrument checks before and after the defendant s test. The lot certificate and the bottle labels for the test solutions. A Highway Patrol Property Control Form A Confidential Disclosure of Personal Identifiers form A Traffic Crash Witness Statement None of the other information requested in the discovery demand has been CLEVE M. JOHNSON ATTORNEY AT LAW 495 S. High Street, Suite 400 Columbus, OH 43215-5058 FAX (614) 358-6633 provided. While the prosecution has been personally cooperative, the prosecution s efforts to provide full discovery have been hampered by lack of further information in its files. Even so, the failure of the police to release information to the prosecution does not relieve it of the duty to provide discovery. See State v. Darmond, 2011 WL 5998671, Ohio App. 8 Dist., Dec. 01, 2011. In particular, 2

the defense would like to obtain copies of any and all video recordings pertaining to the case and the defendant s record. The discovery provided indicates that there was a video.. All discoverable evidence has been demanded and this motion should not be construed as waiving the right to any other discoverable items. While the prosecution in theory has an open records policy for breath testing records, in reality, this policy, perhaps unbeknownst to prosecutors, is often illusory. Prosecutors instruct defense counsel to view the records in the office of the calibration officer on the seventeenth floor of the courthouse, not in the seventh floor prosecutor s office. The first problem with this is that if counsel seeks to review the records too soon, they are at the police station rather than on the 17 th floor. The custodian of the records is, however, rarely at the police station, so going there is fruitless. The next problem is that the officer who maintains the records on the seventeenth floor of the courthouse, has many other duties, such as conducting instrument checks, visiting hospitals to make sure they have a supply of blood kits, serving amended charges on defendants, taking prisoners into custody, and booking them into the jail. It is very common for him to be unavailable when counsel seeks to view the records. If the custodian is unavailable, so are the CLEVE M. JOHNSON ATTORNEY AT LAW 495 S. High Street, Suite 400 Columbus, OH 43215-5058 FAX (614) 358-6633 records. As of this date, the defense has yet to be afforded the opportunity to inspect the breath testing records. The defendant has a clear right to full discovery under Rule 16. While an agreement to provide further discovery at some future date would seem like a reasonable way to resolve this issue, unfortunately, under Criminal Rule 12(D), 3

a motion to compel must be made within 35 days of arraignment. As such, defendant must ask that the prosecution be compelled to produce all discoverable items. The defense, however, has no objection if the court wishes to defer ruling pending compliance so long as the defense is not penalized as the result of not having discovery provided in a timely manner. In the event that full discovery is not ultimately provided, the defendant asks for an order under Criminal Rule 16(L) providing that the defendant s record may not be used in any way in this case, including, but not limited to, treating the defendant as a first offender. The defendant further asks that all other information not disclosed be excluded as per State v. Jones, 183 Ohio App.3d 189, 916 N.E.2d 828, 2009-Ohio-2381 (Ohio App. 8 Dist. May 21, 2009) and for such other sanctions as may be appropriate. WHEREFORE, defendant requests that this court issue an order requiring the prosecution to fully comply with the defendant's demand for discovery and for such other sanctions as may be appropriate. CLEVE M. JOHNSON ATTORNEY AT LAW 495 S. High Street, Suite 400 Columbus, OH 43215-5058 FAX (614) 358-6633 CERTIFICATE OF SERVICE Cleve M. Johnson JOH 28/0002367 Attorney for Defendant 495 South High Street, Suite 400 Columbus, Ohio 43215-5058 This is to certify that a copy of the foregoing document was served upon Lara N. Baker, Columbus City Prosecutor, attorney for plaintiff, 375 South High Street, Columbus, Ohio 43215, by facsimile transmission, on February 1, 2012. 4

Cleve M. Johnson JOH 28/0002367 Attorney for Defendant 495 South High Street, Suite 400 Columbus, Ohio 43215-5058 CLEVE M. JOHNSON ATTORNEY AT LAW 495 S. High Street, Suite 400 Columbus, OH 43215-5058 FAX (614) 358-6633 5

HGN in a cruiser doesn t comply with the NHTSA manual There are at least two reasons why the HGN cannot be done correctly in a cruiser. The first problem involves the difficulty of achieving the proper 45 angle. The second problem is that due to the limited space available, the proper distance cannot be achieved on maximum deviation. First the angle problem: The way the HGN is taught and the way it is described in the manual, the subject is looking straight ahead ( don t move your head ) with his shoulders parallel to those of the officer. The subject s nose is pointing in a direction perpendicular to the shoulders. Using the templates from the manual (e.g. 2004 NHTSA Student Manual VIII-6), the proper alignment and angle should look like this: Turning so that the shoulders are parallel to the officer with the nose pointing straight ahead is hard to do in a cruiser. A gymnast or a side show performer might be able to achieve it, but normal people don t move that way nor do they sustain such a contorted position even if

achieved. When the subject is in the passenger s seat, it is almost impossible for a person of normal flexibility to turn with his shoulders parallel to the officer. The car seat does not swivel and the transmission, and cruiser equipment between the passenger and driver s seats keeps the subject from moving his knees 90 from the normal sitting position to face the officer directly. Most normal people also have difficulty twisting their bodies so that their shoulders are perpendicular to their hips. What happens instead is that the shoulders are at an angle with the right shoulder closer to the passenger s side door and the left shoulder closer to the driver s side door rather both shoulders parallel to the doors. The rest of the turning needed for the subject to face the officer is achieved (if it is achieved at all) by the subject turning his head to the left so that his nose is pointing directly at the officer. When this happens the subject s nose is no longer pointing in a direction that is perpendicular to the subject s shoulders as it is in the normal face to face position used outside the cruiser. The less flexible the person, the worse the effect will be. This, in turn, distorts the normal rule of thumb that officers are given to estimate the 45 degree angle necessary to achieve a correct measurement on the onset prior to 45 portion of the HGN. The trick of lining up the stimulus with the shoulder only works if the person is looking straight ahead with his nose pointing in a direction perpendicular to a line drawn

between the subject s two shoulders. The if the angle is wrong, the result is that instead of measuring onset prior to 45 as the manual requires, what is actually measured is onset after 45. In the graphic below, the red strike through circles show the maximum 45 point where the stimulus would be placed using the shoulder alignment method on a subject with a turned head. The green circles show where the stimulus should be in relation to the direction the head is pointing. The problem is that unless the officer carries a protractor or a template, there is no method approved in the manual for estimating the angle on a turned head. The officer is left to guess. This is not substantial compliance with the manual. Instead, it is in direct contradiction with the angle parameters set forth in the manual. For a case holding precisely this, see State v. Haneberg, 2007 WL 1531410, 2007-Ohio-2561 (Ohio App. 9 Dist. May 29, 2007). Experts will also testify that turning the head also has an effect on the muscles that control the eye. This in turn can affect the HGN results. While the defense may call an expert to verify this, the burden should be on the state to demonstrate that there is no such effect. Under State v. Burnside, 100 Ohio St.3d 152, 797 N.E.2d 71, 2003-Ohio-5372 (2003), only errors that are

clearly de minimis may be excused. Id, 100 Ohio St.3d 159, 797 N.E.2d 77 (emphasis added). Neither the officer, nor the court is qualified to assess the physiological effect caused by twisting the head. Because we sometimes don t know what we don t know, merely because we do not intuitively spot any problem with twisting the head doesn t prove there is no such problem. Even if a subject could manage to turn with his shoulders perfectly parallel to the doors of the vehicle and the problems above could thus be avoided, doing the HGN in a cruiser is still not acceptable. The next problem with doing the HGN in a cruiser is that there is limited space. Most modern cruisers have a partition between the front and rear seats. If the subject somehow does manage to achieve the contorted position necessary for proper administration of the onset prior to 45 portion of the test, that would put him in a position where his left shoulder is a very short distance from the partition. This, in turn would not leave enough space for the stimulus to be moved to the correct position necessary to assess nystagmus at maximum deviation. Since the manual keys the position of the stimulus at onset prior to 45 to the edge of the subject s shoulders presumably the position of the stimulus at maximum deviation has to be significantly further out beyond the end of the shoulders. If the shoulder is nearly touching the partition dividing the front and back seat of the cruiser, this cannot be achieved.

A similar problem also would occur in measuring maximum deviation to the subject s right. If done correctly, the stimulus is supposed to be held above the subject s eye level. Cruiser windshields universally slope in toward the top of the windshield. The distance available for moving the stimulus is further narrowed by the rear view mirror and video cameras which are normally mounted on the passenger s side of the rear view mirror. Thus the requirement of keeping the stimulus above the eye level in turn dictates that the stimulus be moved in that part of the cruiser where the horizontal space available at its narrowest point and where obstacles block the path of the stimulus. Vertical nystagmus is, of course, also impossible in a cruiser since there is little space between the top of the subject s head and the roof of the cruiser. At least in the case of the highway patrol, there is also good authority that the official patrol policy itself prohibits doing the HGN in a cruiser. Video recording of traffic stops is generally required under Ohio Highway Patrol policy number OSP-103.22 B 1. If the HGN is done in the front seat, it is too close to record since the camera mounted on the windshield is just inches away from the subject. Thus, as a practical matter, the video recording rule indirectly requires that the HGN be done outside the cruiser. While officer safety can sometimes be a consideration, officer safety does not explain how the one leg and the walk and turn can be done outside the cruiser but not the HGN. Although other departments may not have a written policy on video recording, presumable the camera is there for a reason and the reason is that the department wants the camera to be used. How the HGN can be incorrect for large subjects.

Intuitively, it may seem unlikely that a person s size could affect their eye movements. The temptation would be to just reject any size related effect on the HGN out of hand. This would be a mistake. There is actually a quite clear mechanism which causes such a result. Parenthetically, it should also be noted that this is one problem with using a substantial compliance rather than a strict compliance standard for admission of the HGN. The mechanisms, and what science there is, underlying the HGN are not intuitively obvious. The use of intuition to determine what is substantial compliance can quite easily lead one astray. Size doesn t affect the subject s eyes. The problem is with the built in assumptions in the testing procedure that aren t necessarily true. What the size problem does do is make it difficult to measure the 45 angle. Here is what the NHTSA manual says about the angle: It is important to know how to estimate a 45-degree angle. How far you position the stimulus from the suspect s nose is a critical factor in estimating a 45-degree angle. (i.e., If the stimulus is held 12" in front of the suspect s nose, it should be moved 12" to the side to reach 45 degrees. Likewise, if the stimulus is held 15" in front of the suspect s nose, it should be moved 15" to the side to reach 45 degrees.) 2004 NHTSA Student Manual VIII-6. The manual further gives officers a quick and dirty way of estimating the 45 degree angle. The angle is not measured. It is determined by aligning the stimulus with the subject s shoulder: Next, check for onset of nystagmus prior to 45 degrees. Start moving the stimulus towards the right (suspect's left eye) at a speed that would take approximately four seconds for the stimulus to reach the edge of the suspect's shoulder. 2004 NHTSA Student Manual VIII-7. The unstated assumption here is that the distance between the subject s nose and shoulder is between 12 and 15 inches. In subjects whose nose to shoulder difference is greater than this, an angle greater than 45 will result and the test will measure onset after 45 (the arrow below) rather than prior to 45 (the circle below). This is the exact opposite of what the manual

requires. See 2004 NHTSA Student Manual VIII-7. The reason for the incorrect angle is elementary geometry. If the legs of a right triangle are not equal in length, the two non-right angles will not be 45.

IN THE MUNICIPAL COURT FOR FRANKLIN COUNTY, OHIO, City of Columbus CRIMINAL DIVISION Plaintiff -vs.- John Doe Defendant Case no.: 2008 TRC XXXXXX JUDGE (UNASSIGNED) REQUEST FOR ORAL HEARING As per local Rule 3.04,counsel requests an oral hearing at which witnesses will be presented. MOTION TO SUPPRESS AND/OR IN LIMINE Now comes the defendant, through counsel, and hereby moves to suppress, or in the alternative for an order in limine prohibiting introduction of any and all evidence, obtained from the warrantless seizure of the defendant including but not limited to: 1. Tests of Defendant's coordination and/or sobriety and/or alcohol and/or drug level, including but not limited to chemical tests of defendant's alcohol and/or drug level and/or the defendant's refusal to take the same. 2. Statements taken from or made by the defendant. 3. The defendant s exercise of his right to remain silent. CLEVE M. JOHNSON ATTORNEY AT LAW 495 S. High Street, Suite 400 Columbus, OH 43215-5058 FAX (614) 358-6633 4. Observations and opinions of the police officer(s) who stopped the defendant and/or arrested and/or tested the defendant regarding defendant's sobriety and/or alcohol and/or drug level. 5. Observations of the officer which import an unwarranted aura of scientific validity to the field sobriety tests. The defendant submits that the burden is upon the state to justify the warrantless seizure of the defendant and evidence taken from the defendant and to show why the above evidence should not be suppressed due to the following grounds.

1. There was no lawful cause to stop the defendant, detain the defendant, subject the defendant to field "tests", and/or no probable cause to arrest defendant without a warrant. 2. Statements from the defendant were obtained in violation of his Fifth Amendment right against self-incrimination and both his Fifth and Sixth Amendment right to counsel as applicable under the Fourteenth Amendment. 3. The officer did not follow the statutory procedure in requesting that the defendant take a chemical test. 4. Evidence of an alleged refusal is inadmissible in an impaired case. 5. The horizontal gaze nystagmus test was not designed to ascertain impairment nor is it predictive of impairment and as such it is not relevant in an impaired case. 6. Documents may not be used against the defendant without affording him his right to confront witnesses against him under Crawford vs. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004) and without violating Evid R 803 (8). 7. According to the NHTSA manuals, with the exception of vertical nystagmus, the field sobriety tests are correlated with a prohibited concentration of alcohol only. There is no claim that they can predict drug or alcohol impairment and thus are irrelevant to drug or cases alleging impairment by alcohol. 8. An outdated form 2255 was used in this case which had incorrect information as to the lengths of the suspensions which vitiated any action taken by the defendant in response to such information. 9. For driver s who should have been, but were not, charged only with physical control, the 2255 warnings telling the driver that a positive test will cause his license to be suspended are incorrect. Thus, any alleged refusal was vitiated as the result of being based on incorrect information. CLEVE M. JOHNSON ATTORNEY AT LAW 495 S. High Street, Suite 400 Columbus, OH 43215-5058 FAX (614) 358-6633 Cleve M. Johnson JOH 28/0002367 Attorney for Defendant 495 South High Street, Suite 400 Columbus, Ohio 43215-5058 MEMORANDUM Probable Cause 2

The magic words theory of probable cause is not the law and should not be applied in this case. It is sometimes assumed that the state s burden in a motion hearing is so slight that all that is required for the burden to be met is for the officer to mention a few well known phrases such strong odor of alcohol. This is the magic words theory of probable cause and it is not the law. The law as set forth by the Ohio Supreme Court is as follows: Probable cause to believe a driver is operating a vehicle while intoxicated arises from readily discernable indicia under the totality of the circumstances. State v. Gustafson, 76 Ohio St.3d 425, 450, 668 N.E.2d 435, 453, 1996-Ohio-425 (Ohio, Jul 30, 1996), emphasis added. Consequently, contrary to popular belief, once the magic words are uttered, the case is not over. All of the other facts and circumstances are relevant and are the proper subject of inquiry. To put it simply, the court cannot just say I have three things consistent with probable cause and I have heard enough. If there are 57 things inconsistent with probable cause and only three things consistent with probable cause, under the totality of the circumstances requirement, there is not probable cause. Likewise, if the court has heard the three things favoring probable cause but not the 57 things inconsistent with it, the court has not considered the totality of the circumstances. All 60 are relevant and must be considered even if the three have been proven. The inquiry does not end after the magic words are spoken nor is it proper to reach a decision at that point. All factors must be considered. CLEVE M. JOHNSON ATTORNEY AT LAW 495 S. High Street, Suite 400 Columbus, OH 43215-5058 FAX (614) 358-6633 It is submitted that the evidence will show that there was no valid reason to stop or detain the defendant. Evidence flowing from an illegal stop, detention and/or arrest cannot be used to convict the defendant. State vs. Chatton, 11 Ohio St. 3d 59, 463 N.E. 2d 1237 (1984); State vs. Timson, 38 Ohio St. 2d 122, 311 N.E. 2d 16 (1974); State vs. Walters, Hamilton App. No. C-80413 (March 27, 1985) unreported. 3

Parenthetically, it should also be noted that since the court file disclosed that this was a warrantless arrest, the prosecution bears both the burden of proof and the burden of going forward on all issues raised in this motion pursuant to the cases of Mentor vs. Giordano, 9 Ohio St. 2d 140 (1967) and Xenia vs. Wallace, 37 Ohio St. 2d 216 (1988). PASTE INSERT FOR SPECIFIC PROBABLE CAUSE OFFENSE HERE. Specifically it is submitted that the evidence will be insufficient to show that the officer had reasonable suspicion to believe that the defendant committed a headlight violation and that there was no other valid reason for stopping the defendant or for arresting him for OVI. Furthermore, a headlight violation alone does not provide probable cause to arrest for OVI where there were not enough other signs of intoxication to constitute probable cause for that offense under State vs. Finch, 24 Ohio App 3d 38 (1985). See also State vs. Taylor, 3 Ohio App. 3d, 197 (1981) holding that speed alone and a mere odor of alcohol is insufficient to constitute probable cause. Nor can the prosecution bootstrap the probable cause issue with field tests or other subsequent evidence: "...absent reasonable suspicion that the subject is intoxicated, the officer cannot require the motorist to submit to sobriety tests State vs. Weaver, 87CA40, 1988 WL 88390 (unreported 7th District, 1988). See also State vs. Dixon, 2000 WL 1760664 (2d Dist. Dec 1,2000). As the United States Supreme Court put it, the detention of a person: " must be temporary and last no longer than is necessary to effectuate the purpose of the stop." CLEVE M. JOHNSON ATTORNEY AT LAW 495 S. High Street, Suite 400 Columbus, OH 43215-5058 FAX (614) 358-6633 Florida v. Royer, 460 U.S. 491, 500 (1983). Thus, any detention beyond that necessary to cite the defendant for the headlight light violation was illegal. The officer must have reasonable suspicion to believe the defendant was under the influence before he can be detained for field tests. Even if it is assumed arguendo that the defendant may not have 4

performed perfectly on the field "tests", the officer had no legal authority to administer those tests in the first place. Thus, the issue is not whether [the officer] had the right to take [the defendant] into custody, but whether he had the right to administer field sobriety tests. If he did, we recognize that the results of those tests afforded probable cause for the subsequent administration of a breath alcohol test. We cannot distinguish this case from State v. Spillers (March 24, 2000), Darke App. No. 1504, unreported, in which we held that "de minimus" lane violations, combined with a slight odor of an alcoholic beverage and the admission to having consumed "a couple" of beers, were not sufficient to justify the administration of field sobriety tests. The mere detection of an odor of alcohol, unaccompanied by any basis, drawn from the officer's experience or expertise, for correlating that odor with a level of intoxication that would likely impair the subject's driving ability, is not enough to establish that the subject was driving under the influence. Nor is the subject's admission that he had had one or two beers. State vs. Dixon, 2000 WL 1760664 page 2 (2d Dist. Dec 1,2000) emphasis added. By asking questions irrelevant to the purpose of the stop, the officer impermissibly expanded the length and the scope of the investigative stop Because the scope of the detention, was not carefully tailored to its underlying justification subsequent evidence was obtained in violation of the Fourth Amendment. See State v. Brown, 183 Ohio App.3d 337, 916 N.E.2d 1138, 2009- Ohio-3804 (Ohio App. 6 Dist. Jul 31, 2009). CLEVE M. JOHNSON ATTORNEY AT LAW 495 S. High Street, Suite 400 Columbus, OH 43215-5058 FAX (614) 358-6633 We note that this probable cause determination, like all probable cause determinations, is fact-dependent and will turn on what the officer knew at the time he made the stop. Under this test, it is clear that the courts may not determine whether there was probable cause by looking at events that occurred after the stop. Dayton v. Erickson, 76 Ohio St.3d 3, 10; 665 N.E.2d 1091, 1096; 1996-Ohio-431 (1996). Compliance with 4511.191 5

The provisions of Ohio Rev. Code 4511.191 are not applicable unless the defendant was validly arrested by an officer having reasonable grounds to believe the defendant was operating a vehicle while under the influence of alcohol and/or drugs of abuse and was properly advised of the Ohio implied consent provisions. The warning, documentation and other provisions of Ohio Rev. Code 4511.191 must also be complied with. When implied consent warnings are misstatements of the law, consent is involuntary and such evidence is unconstitutionally obtained under the Fourth Amendment. Therefore the defendant's alcohol test must be suppressed. State vs. Taggart, Washington App. No. 86 CA 21 (August 29, 1987) unreported. The automatic refusal provisions of 4511.192 are unconstitutional. An inability to provide a sample is not a refusal. See, for example, Trotwood v. Briggs, 64 Ohio Misc.2d 34, 639 N.E.2d 876 (Ohio Co. Jul 13, 1994); Riebel v. Curry (1974), 38 Ohio Misc. 71, 74, 313 N.E.2d 26; and Hoffer- Hodge v. Caltridge, 1998 WL 906479 (Ohio App. 2 Dist. Dec 31, 1998). The legislature has purportedly made refusals automatic under 4511.192. (A): The person must submit to the chemical test or tests, subsequent to the request of the arresting officer, within two hours of the time of the alleged violation and, if the person does not submit to the test or tests within that two-hour time limit, the failure to submit automatically constitutes a refusal to submit to the test or tests. CLEVE M. JOHNSON ATTORNEY AT LAW 495 S. High Street, Suite 400 Columbus, OH 43215-5058 FAX (614) 358-6633 In addition to being unconstitutional this provision is also patently absurd. The legislature is attempting to usurp the courts role as a fact finder and decide questions of fact by legislation. There are many reasons why a defendant may not submit to a test within the required time period that do not involve a refusal. Some examples are provided below: 6

The officer Doesn t attempt to administer the test within the required time. The defendant is unconscious. The defendant is deaf The defendant is doesn t understand English The defendant has head injuries and does not understand The defendant cannot blow hard enough for medical reasons. The defendant has an empty bladder The defendant has shy bladder syndrome The defendant has moral objections to a providing a urine sample to a opposite sex officer. Taking a blood sample would violate the defendant s religious beliefs (e.g. Jehovah s Witness) The automatic refusal provision is both an unconstitutional conclusive presumption and a due process violation under both the Ohio and the United States Constitutions. Our cases make clear that "[s]uch shifting of the burden of persuasion with respect to a fact which the State deems so important that it must be either proved or presumed is impermissible under the Due Process Clause." Patterson v. New York, 432 U.S., at 215, 97 S.Ct., at 2329. Francis vs. Franklin (1985), 471 U.S. 317-318, 105 S. Ct. 1972-1973. CLEVE M. JOHNSON ATTORNEY AT LAW 495 S. High Street, Suite 400 Columbus, OH 43215-5058 FAX (614) 358-6633 Mandatory presumptions must be measured against the standards of Winship as elucidated in Sandstrom. Such presumptions violate the Due Process Clause if they relieve the State of the burden of persuasion on an element of an offense. Patterson v. New York, supra, 432 U.S., at 215, 97 S.Ct., at 2329 ("[A] State must prove every ingredient of an offense beyond a reasonable doubt and... may not shift the burden of proof to the defendant by presuming that ingredient upon proof of the other elements of the offense"). See also Sandstrom, supra, 442 U.S., at 520-524, 99 S.Ct., at 2457-2459; Mullaney v. Wilbur, supra, 421 U.S., at 698-701, 95 S.Ct., at 1889-1890. FN2. A mandatory presumption may be either conclusive or rebuttable. A conclusive presumption removes the presumed element from the case once the State has proved the predicate facts giving rise to the presumption. A rebuttable presumption does not remove the presumed element from the case but nevertheless requires the jury to find the presumed element unless the defendant persuades the jury that such a finding is unwarranted. See Sandstrom v. 7

Montana, 442 U.S. 510, 517-518, 99 S.Ct. 2450, 2455-2456, 61 L.Ed.2d 39 (1979). Id, 471 U.S. 313-314, 105 S. Ct. 1970-1971. An irrebuttable or conclusive presumption relieves the State of its burden of persuasion by removing the presumed element from the case entirely if the State proves the predicate facts. A mandatory rebuttable presumption does not remove the presumed element from the case if the State proves the predicate facts, but it nonetheless relieves the State of the affirmative burden of persuasion on the presumed element by instructing the jury that it must find the presumed element unless the defendant persuades the jury not to make such a finding. A mandatory rebuttable presumption is perhaps less onerous from the defendant's perspective, but it is no less unconstitutional. Our cases make clear that "[s]uch shifting of the burden of persuasion with respect to a fact which the State deems so important that it must be either proved or presumed is impermissible under the Due Process Clause." Patterson v. New York, 432 U.S., at 215, 97 S.Ct., at 2329. Id, 471 U.S. 317-318, 105 S. Ct. 1972-1973 (emphasis added). Outdated BMV Form 2255 An outdated form 2255 was used in this case rather than the current BMV 2255 7/12. The old forms have incorrect information regarding such things as CDL consequences and the lengths of the suspensions which vitiates any action taken by the defendant in response to such information. See Eastlake v. Komes, 2010 WL 2171145, 2010-Ohio-2411 (Ohio App. 11 Dist. May 28, 2010). When a person is erroneously advised regarding the consequences of refusing to submit to a chemical test for alcohol, the person's consent is involuntary, and the CLEVE M. JOHNSON ATTORNEY AT LAW 495 S. High Street, Suite 400 Columbus, OH 43215-5058 FAX (614) 358-6633 chemical test is inadmissible. See, State v. Szalai (Ashtabula 1983), 13 Ohio Misc.2d 6; State v. Chard (6th Dist. 1984), unreported, 1984 WL 7788; State v. Gottfried (6th Dist. 1993), 86 Ohio App.3d 106. While Bryan v. Hudson 77 Ohio St.3d 376 (1997) held that reading language on top of 2255 is sufficient to inform the defendant of consequences, the issue of an outdated form was not involved there, but rather a current one which was incorrect as applied to the Δ 8

in that case. Even so, the court in Komes, cited Hudson and did not believe that it dictated a different result. Statements of the Defendant The defendant further contends that custodial statements taken from defendant were obtained in violation of his constitutional rights under the Fourth, Fifth, Sixth and Fourteenth Amendments of the Constitution of the United States, Article I Section 10 of the Ohio Constitution, Miranda vs. Arizona, 348 U.S. 436 (1966); Berkemer vs. McCarty, 468 U.S. 240, 104 S. Ct. 3138 (1984); State vs. Buckholz, 11 Ohio St. 3d 24, 462 N.E. 2d 1222 (1984); and State vs. Leach, 102 Ohio St.3d 135, 807 N.E.2d 335, (2004). If the defendant has a prior conviction and he refuses to take a chemical test, that statement may constitute an element of the crime of criminal refusal. If that statement is made in response to an officer s question and the defendant is in custody, that statement is not admissible unless the Miranda warnings were first given. Thus, without proof of prior advisement, the alleged refusal evidence in this case should be inadmissible. See, however, Middleburg Hts. v. Henniger, 2006 WL 2034774, 2006-Ohio- 3715 (Ohio App. 8 Dist. Jul 20, 2006) and State v. Turner, 2008 WL 2955396, 2008-Ohio-3898 (Ohio App. 11 Dist. Aug 01, 2008) wherein it was held that a refusal is not testimonial. It is submitted, however, that Henniger and Turner CLEVE M. JOHNSON ATTORNEY AT LAW 495 S. High Street, Suite 400 Columbus, OH 43215-5058 FAX (614) 358-6633 were wrongly decided and conflict with Leach. Leach said that even just remaining silent may not be commented on. If doing nothing cannot be commented on, surely words to the same effect should not be treated differently. In a criminal refusal case, refusing the test is tantamount to a confession. This is precisely the sort of situation where Miranda was intended to apply. Declining to apply Miranda here is essentially holding that the constitution does not apply in OVI cases. 9

It is further submitted that any such statements also violate the corpus delecit rule. State vs. Ralston, 67 Ohio App 2d 81 (1979). Nor can the defendant s silence be used against him even if it happens before there is an arrest under State v. Leach, 102 Ohio St.3d 135, 807 N.E.2d 335, 2004-Ohio- 2147 (Ohio May 12, 2004). Field Sobriety Exercises In an impaired case, the horizontal gaze nystagmus should be suppressed and perhaps the other so called field tests as well. The case normally cited in support of the admissibility of the horizontal gaze nystagmus test is State vs. Bresson, 51 Ohio St. 3d 123 (1990). It should be noted that Bresson, unlike the case at bar, was a per se case. The syllabus specifically provides that "... testimony may not be admitted to show what the exact alcohol concentration level of the driver was for purposes of R.C. 4511.19(A)(2), (3) or (4)." Id., 123. The NHTSA manual indicates that "Research shows that if four or more [HGN] clues are evident, it is likely that the suspects blood alcohol concentration is above 0.10. The reliability of this four-or-more clues criterion is 77%." DWI Detection And Standardized Field Sobriety Testing, Student Manual at VII-6 (1995). See also page VII-6 of the 2000 and Chapter VIII p11 CLEVE M. JOHNSON ATTORNEY AT LAW 495 S. High Street, Suite 400 Columbus, OH 43215-5058 FAX (614) 358-6633 last of the 2002 manual to the same effect. Similarly, the training manuals tie passing or failing the one leg stand test to a likelihood of exceeding the.100 and.08 per se level. See 1995 Manual VIII 24 3d from bottom ], 2000 Manual VIII-14 middle, 2002 VIII p14 3rd from bottom. Likewise, with the walk and turn tests. See 1995 Manual. VIII 21 paragraph 2, 2000 Manual, VIII-12 3, and 2002 VIII p11 7. 10

The NHTSA scientists who did the research upon which the manual is based also agree that performance on the the FST s is not indicative of impairment: Many individuals, including some judges, believe that the purpose of a field sobriety test is to measure driving impairment. For this reason, they tend to expect tests to possess face validity, that is, tests that appear to be related to actual driving tasks. Tests of physical and cognitive abilities, such as balance, reaction time, and information processing, have face validity, to varying degrees, based on the involvement of these abilities in driving tasks; that is, the tests seem to be relevant on the face of it. Horizontal gaze nystagmus lacks face validity because it does not appear to be linked to the requirements of driving a motor vehicle. The reasoning is correct, but it is based on the incorrect assumption that field sobriety tests are designed to measure driving impairment. Stuster, Jack and Burns, Marcelline Validation of the Standardized Field Sobriety Test Battery t BAC s Below 0.10 Percent Final Report Submitted to: U.S. Department of Transportation, National Highway Traffic Safety Administration, emphasis added. (Reprinted in the Appendix of the 2004 and 2006 NHTSA instructor s manuals in Session VIII) Ohio courts have refused to recognize that exceeding the per se levels provides any evidence as to impairment. If exceeding the per se levels is not relevant to an impaired charge, then a test designed to guess at the per se levels should not be relevant either. This issue normally arises in the context of the per se case. In cases such as State vs. Boyd, 18 Ohio St. 3d 30 (1985) and Whitehall vs. Lee, (September 30, 1993) 93AP-548 unreported, (1993 opinions 4256) the courts have held that evidence of a defendant's sobriety is inadmissible in a per se case to challenge the result produced by a breath testing machine. The rational expressed in CLEVE M. JOHNSON ATTORNEY AT LAW 495 S. High Street, Suite 400 Columbus, OH 43215-5058 FAX (614) 358-6633 these cases is that in a per se case whether or not one is under the influence is not in issue. The defendant is merely charged with having a prohibited concentration of alcohol in his or his system. As such, evidence of sobriety is irrelevant to a per se charge because it does not have any bearing on a matter in issue in the case. Being under the influence is not an element of the offense and the state does not have to prove this. 11

In so ruling, the courts must of necessity tacitly refuse to take judicial notice that a person with an alcohol level meeting or exceeding.100 would be impaired. If the courts took judicial notice that one testing over the per se limit would show symptoms of impairment, then evidence of sobriety would raise questions as to whether the machine yielded the correct result and would thus be directly relevant evidence (if all persons at or over.100 show signs of impairment and if the defendant shows no sign of impairment, then the machine must be wrong). A change in this position would mean that defendants could challenge test results with evidence of sobriety. Thus, even in the most optimistic case for the prosecution, HGN testimony if admitted in a per se case at best indicates that the defendant has a 77% chance of testing above 0.100. Since this fact, even if proven by a breath test, is, without more legally irrelevant in a impaired case under Boyd. and since no more specific information as to level is admissible under Bresson, the only possible conclusion is that HGN evidence is legally irrelevant in an impaired case. It is submitted that the results of the so called "field sobriety tests" should not be admitted. In the first syllabus of State v. Homan, 89 Ohio St.3d 421 (2000), the Ohio Supreme Court held that: 1. In order for the results of a field sobriety test to serve as evidence of probable cause to arrest, the police must have administered the test in strict compliance with standardized testing procedures. Id, 421. The court also acknowledged that the National Highway Traffic Safety CLEVE M. JOHNSON ATTORNEY AT LAW 495 S. High Street, Suite 400 Columbus, OH 43215-5058 FAX (614) 358-6633 Administration manuals "...form the basis for manuals used by state law enforcement agencies across the country. Id., 424 footnote 4. Until and unless the prosecution can demonstrate that each and every alleged field sobriety test was administered in the prescribed manner, all such evidence must be suppressed under Homan. Note also that it is the prosecution s burden to prove that any tests...were conducted in a standardized manner as provided by the National Highway Traffic Safety 12

Administration. State v. Nickelson, 2001 WL 1028878 p. 9 (Ohio App. 6 Dist., Jul 20, 2001). See also State v. Pingor, ) (NO. 01AP-302) 2001 WL 1463774 (Ohio App. 10 Dist., Nov 20, 2001where Nickelson was cited favorably by the Franklin County Court of Appeals. To the same effect, see also State v. Shepard, 2002 WL 506674 (Ohio App. 2 Dist., Apr 05, 2002) (NO. 2001-CA- 34). Note that the anti-homan legislation is discussed below. There is absolutely no logical reason for admitting the HGN at trial in an impaired case. As was mentioned above, the NHTSA research expressly disclaims that the HGN has any relation to impairment, but rather only to the probability of the defendant testing above a prohibited level. Under these circumstances, the HGN is simply not relevant to an impaired case. Furthermore, under State v. Grizovic, 177 Ohio App.3d 161, 894 N.E.2d 100, 2008-Ohio-3162 (Ohio App. 1 Dist. Jun 27, 2008) even the manual statement cannot be given to the jury. While the defendant s performance on other FST s may be of some common sense value to a juror, the same cannot be said of the HGN. The manifestation of nystagmus under different circumstances is also a scientific theory that would not be known by the average person. HGN testing is based on a scientific principle not generally known by lay jurors. State v. Robinson, 160 Ohio App.3d 802, 812-813, 828 N.E.2d 1050, 2005- Ohio-2280 (Ohio App. 5 Dist. May 05, 2005). CLEVE M. JOHNSON ATTORNEY AT LAW 495 S. High Street, Suite 400 Columbus, OH 43215-5058 FAX (614) 358-6633 If the HGN is admitted in an impaired case, this can be nothing more than an invitation to the jury to speculate. What are they supposed to think that this means. They don t have any common sense understanding and we won t tell them what the manual says. If the jury is told that the defendant got 6 wrong out of 6 or even 4 out of 6, the juror s thought process is probably something like this: Since the judge let us hear this, it must mean something. Since the 13

officer arrested him after doing the test, he must have failed. If you get 6 wrong out of 6 that is failing on any test I have ever seen. Therefore the jury probably thinks defendant has scientifically been proven impaired. There simply is no rationale for admitting the HGN in an impaired case. Unfortunately, in the early days of FST s, the Ohio Supreme Court included some language in an opinion which makes no sense. The following citation is probably dicta and is also probably factually distinguishable in an impaired case, since the citation below was made in a per se case. Nevertheless, it should be noted that the court indicated that: "We hold that the HGN test has been shown to be a reliable test, especially when used in conjunction with other field sobriety tests and an officer's observations of a driver's physical characteristics, in determining whether a person is under the influence of alcohol. State v. Bresson, 51 Ohio St.3d 123, 129, 554 N.E.2d 1330 (Ohio May 30, 1990). The problem with this quote is that the notion that the HGN is has any bearing on impairment was apparently pulled out of thin air. NHTSA scientists expressly disclaim this. Bresson is dicta based upon a mistake of fact. The supreme court assumed without any proof and contrary to the science of the matter that the HGN provides proof of impairment. It then elevated this unscientific assumption at least to the level of dicta. The language of the NHTSA scientists quoted above bears repeating. It is an: incorrect assumption that field sobriety tests are designed to measure CLEVE M. JOHNSON ATTORNEY AT LAW 495 S. High Street, Suite 400 Columbus, OH 43215-5058 FAX (614) 358-6633 driving impairment., supra. Insofar as trial evidence is concerned, once an officer testifies to smelling an odor of alcohol, admitting the FST s to prove consumption is cumulative evidence and has little to no additional probative value. Under these circumstances, the real reason for seeking to admit the FST s is to lend a false 14

aura of scientific reliability to otherwise marginal evidence. It should also be kept in mind that drinking and driving is legal and that proving a smell of alcohol establishes nothing illegal. Any slight probative value on the issue of consumption is vastly outweighed by the prejudicial effect of the jury being lead to believe that impairment has been scientifically determined. Thus the HGN is inadmissible under Evidence Rule 403(A). Daubert and Miller vs. Bike It is further submitted that under the particular facts and circumstances of this case, the so called field tests are unreliable and therefore inadmissible under the standard set forth in Daubert v. Merrill Dow Pharmaceuticals, Inc. 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed. 2d 469 (1993), and Miller v. Bike Athletic Co., 80 Ohio St.3d 607 (1998). Under these cases, the court must assume an expanded role as gatekeeper over questionable scientific evidence. While it is true that the 10 th district found that Vega made Daubert inapplicable to OVI cases in State v.luke, (May 11, 2006), Franklin App. No. 05AP-371, 2006 WL 1280899; it is submitted that the Luke decision is erroneous and that the rational of the Ohio Supreme Court and the United States Supreme Court is correct. 4511.19(D) Is Unconstitutional On Equal Protection Grounds The equal protection clauses of both the Ohio and the United States CLEVE M. JOHNSON ATTORNEY AT LAW 495 S. High Street, Suite 400 Columbus, OH 43215-5058 FAX (614) 358-6633 Constitutions are flagrantly violated by 4511.19(D) [SB 163, eff. 4/9//03]. Amended 4511.19(D)(4)(b) (ii) provides as follows: The prosecution may introduce the results of the field sobriety test so administered as evidence in any proceedings in the criminal prosecution or juvenile court proceeding. In its rush to satisfy the Prosecuting Attorney s association, the lame duck legislature abandon all pretense of fairness. The obvious defect here is that only 15

the prosecution is allowed to introduce the result of the test. In a substantial compliance case, if the defendant passes the test and the prosecutor does not seek to introduce the test result, the defendant is not given the same right as the prosecution to introduce the result. The bill gives the prosecution, but not the defense, the right to introduce exculpatory evidence. 4511.19(D) Is Unconstitutional On Due Process Grounds The due process clauses of both the Ohio and the United States Constitutions are flagrantly violated by 4511.19(D) [SB 163, eff. 4/9//03]. As was set forth above, the Ohio Supreme Court in Homan held that: "When field sobriety testing is conducted in a manner that departs from established methods and procedures, the results are inherently unreliable." State v. Homan (2000), 89 Ohio St.3d 421, 424. A statute which purports to make inherently unreliable evidence admissible is fundamentally unfair and a due process violation. Improper Attribution Of Scientific Reliability To Field Exercises Even if the results of the so called field tests are admitted, they should not be referred to as tests. These tests consisted of one or more of the following: walking heel to toe, standing on one leg, touching the finger to the nose, and reciting the ABC s. CLEVE M. JOHNSON ATTORNEY AT LAW 495 S. High Street, Suite 400 Columbus, OH 43215-5058 FAX (614) 358-6633 It is anticipated that the prosecution will attempt to expressly or by implication cause the jury to believe that these physical exercises are scientifically valid tests, that the defendant failed the test, and that, as such, it has been scientifically demonstrated that the defendant was under the influence of alcohol. 16

A review of the case law in Ohio reveals a thread of decisions supporting the proposition that field sobriety tests' are admissible as nonscientific evidence because they involve observations within the common experience of the ordinary citizen. State vs. Nagel 30 Ohio App.3d 80 (1986). While the while the aforementioned tests may be admissible as nonscientific evidence, the prosecution should be prohibited from attempting to attach significance to the defendant's performance on these exercises which go beyond the common experiences of the ordinary citizen. To permit the prosecution or the officer to make reference to the exercises by using terms such as 'test", pass, fail". "clues", or "points, creates a potential for enhancing the significance of the observations in relationship to the ultimate determination of impairment. Such terms give these lay observations an aura of scientific validity which has not been demonstrated to the court through proper expert scientific testimony. To allow the prosecution to imply an unproven scientific validity to these tests would violate Evidence Rule 403(A) since it would mislead the jury and since the danger of unfair prejudice would be outweighed by the probative value of using such terms. In the State of Florida, extensive hearings were conducted in 350 consolidated cases on this exact issue. See Florida vs. Meador, 674 So.2d (1996). Expert testimony on field sobriety testing was admitted by the defense CLEVE M. JOHNSON ATTORNEY AT LAW 495 S. High Street, Suite 400 Columbus, OH 43215-5058 FAX (614) 358-6633 and the state. The state public defender s office consolidated all of its DUI cases on the issue as well. On May 15, 1996. the District Court of Appeals of Florida unequivocally concluded that: While psychomotor tests are admissible, we agree with the defendants that any attempt to attach significance to defendants' performance on these exercises beyond that attributable to any of the other observations of a defendant's, conduct at the time of arrest could be misleading to the jury and thus tip the scales so 17

that the danger of unfair prejudice would outweigh its probative value. Id, at 832. Therefore. the aforementioned terms must be avoided to minimize the danger that the jury will attach greater significance to the results of the field sobriety exercises than to other lay observations of impairment. In short, while it may be argued that field sobriety exercises fall within the ambit of a juror's common observations, the prosecution should not be permitted to attach an aura of science to his or her observations by using enhancing terms such as test, fail, pass, clues", results", points or words of similar import. Inadmissibility of Evidence Of A Refusal In An Impaired Case Contrary to the popular assumption, evidence of an alleged refusal should not admissible in an impaired case. There was no chemical test in the case at bar and as such, the defendant is only charged with an impaired charge. While it is commonly thought that evidence of the alleged refusal is admissible in impaired cases, no case has decided this issue. The case usually cited for the admissibility of such evidence is Westerville vs. Cunningham, 10 Ohio St. 2d 121 (1968). It is important to note that this case was decided prior to the 1983 amendments to Ohio Rev. Code 4511.19. The prior law provided that a high test gave rise to a presumption that the defendant was under the influence. The 1983 amendments eliminated the former presumptions in the impaired case CLEVE M. JOHNSON ATTORNEY AT LAW 495 S. High Street, Suite 400 Columbus, OH 43215-5058 FAX (614) 358-6633 and substituted the additional per se charge. Where a high test gives rise to a presumption of impairment, the test result is of obvious significance. Even if it is assumed arguendo that the defendant refused because he was worried that taking the test might convict him of a per se violations, this does not make the test result admissible because the defendant is not charged with a per se violation. In order for the refusal to be 18

significant in a refusal case, the additional assumption must be made that exceeding the per se level would also provide evidence of impairment. Ohio courts have refused to recognize that exceeding the per se levels provides any evidence as to impairment. This issue normally arises in the context of the per se case. In cases such as State vs. Boyd, 18 Ohio St. 3d 30 (1985) and Whitehall vs. Lee, (September 30, 1993) 93AP-548 unreported, (1993 opinions 4256) the courts have held that evidence of a defendant's sobriety is inadmissible in a per se case to challenge the result produced by a breath testing machine. The rational expressed in these cases is that in a per se case whether or not one is under the influence is not in issue. The defendant is merely charged with having a prohibited concentration of alcohol in his or his system. As such, evidence of sobriety is irrelevant to a per se charge because it does not have any bearing on a matter in issue in the case. Being under the influence is not an element of the offense and the state does not have to prove this. In so ruling, the courts must of necessity tacitly refuse to take judicial notice that a person with an alcohol level meeting or exceeding.100 would be impaired. If the courts took judicial notice that one testing over the per se limit would show symptoms of impairment, then evidence of sobriety would raise questions as to whether the machine yielded the correct result and would thus be directly relevant evidence (if all persons at or over.100 show signs of impairment and if the defendant shows no sign of impairment, then the CLEVE M. JOHNSON ATTORNEY AT LAW 495 S. High Street, Suite 400 Columbus, OH 43215-5058 FAX (614) 358-6633 machine must be wrong). A change in this position would mean that defendants could challenge test results with evidence of sobriety. Since it is the law that exceeding the per se limits has no relevance to impairment, then refusing to take the test can likewise have no relevance to impairment. In this context, to admit evidence of an alleged refusal can be nothing more than an attempt to unfairly bias and prejudice the jury. Implicit in allowing the jury the jury to hear such evidence is the following tacit 19

argument: Since the defendant "got away with" a per se charge that he was probably guilty of (otherwise he would supposedly have taken the test) you should find him guilty of the impaired charge even without sufficient evidence because he deserved to be convicted of the per se charge. Even if this is exactly what happened, i.e. the defendant refused to avoid a per se conviction, evidence relating to the per se charge is still absolutely inadmissible in an impaired case. Exceeding a particular level is not a fact of consequence in a impaired case and thus refusing to provide evidence of this nature is not relevant under Evidence Rule 401. Furthermore, a refusal is in reality evidence of another crime (a per se charge) which is clearly inadmissible under Evidence Rule 404(B). In addition to the rule, it has long been basic hornbook law that evidence of uncharged crimes is simply not admissible to prove that the defendant committed the charged crime. The rule is that the prosecution may not introduce evidence of other criminal acts of the accused unless the evidence is substantially relevant for some other purpose than to show a probability that he committed the crime on trial because he is a man of criminal character. Cleary, Edward W. ed.; McCORMICK'S HANDBOOK OF THE LAW OF EVIDENCE; 2d E.; West (1972); 190 p. 447. Evidence of the refusal can only be admitted in the case at bar if this court decides that it is true that persons who exceed the per se limits are also impaired and it takes judicial notice of this proposition. Note, however, as explained above, that doing so will also thereby, of necessity, make evidence of CLEVE M. JOHNSON ATTORNEY AT LAW 495 S. High Street, Suite 400 Columbus, OH 43215-5058 FAX (614) 358-6633 sobriety admissible in per se cases and thus contradict the Boyv and Lee line of cases. While there appears to be no direct authority either way on this issue, there is secondary authority. In discussing Boyd, supra, Judge Mark Painter and well-known attorney and lecturer James M. Looker note in their treatise on Ohio DUI law that: 20

The [Boyd] Court held that RC 4511.19(A)(3) [the per se subsection] required proof of only two elements: (1) operation of a vehicle with (2) a prohibited breath alcohol level. Therefore, physical evidence of a defendant's alleged lack of intoxication did not offer any probative value. Implicitly based on this holding, an argument arises that a breath test, or even a refusal to take a breath test, is not relevant and therefore inadmissible in a prosecution for driving under the influence under 4511.19(A)(1) [the impaired subsection]. M. Painter & J. Looker, Ohio Driving Under The Influence Law, 15.09 at 158 (2d Ed. 1990, emphasis added). While the supreme court did allow refusal evidence to be admitted in Maumee vs. Anistik 69 Ohio St. 3d 339 (1994), the issue raised here was not raised in Anistik. Furthermore, Anistik was factually dissimilar to the case at bar since the decision there depends at least in part on the reasons for the refusal of the test. It should also be noted that a hearing is required on this issue under Columbus vs. Maxey, 39 Ohio App. 3d 171 (1988) [Maxey, in turn, was cited with approval by the Supreme Court in Anistik. Specificity of Motion The actual motion which was approved by the Ohio Supreme Court in State vs. Shindler, 70 Ohio St. 3d 54 (1994) is attached and the averments therein are hereby incorporated. It is far less specific than this motion. If the prosecution makes a representation to this court that the motion in this case is less specific CLEVE M. JOHNSON ATTORNEY AT LAW 495 S. High Street, Suite 400 Columbus, OH 43215-5058 FAX (614) 358-6633 than the one allowed in Shindler, it is only right that the prosecution should show the court what part of the attached motion is more specific than the one in this case. Since the attached motion has been incorporated, by definition, this should be impossible. Accordingly, any prosecution objections should, by definition, be without merit. 21

Similarly, a ruling for the prosecution would, of necessity require this court to overrule the Ohio Supreme Court. Since the motion the Supreme Court approved has been incorporated, this court cannot do what the government asks without making a finding which is diametrically opposed to that in Shindler. It should also be noted here that at the time this motion was required to be filed, full discovery had not been provided thereby making a complete motion impossible. This is the fault of the government, not the defendant. The defendant should not be penalized for a problem created by the state. Furthermore, the basis for this motion is the Fourth Amendment to the Constitution. While a specificity objection might seem like a clever tactical maneuver, such an objection is at best rule based. If the Constitution is to be disregarded based on a tactical maneuver, the prosecution should first point out what part of the Constitution allows the Fourth Amendment to be overridden by rule of court. In addition, even if it is assumed arguendo that this motion is insufficient, the state waives this argument by failing to file a memorandum contra: While Crim.R. 47 requires a defendant to state his grounds for a motion to suppress with particularity, the state waives this issue if it is not raised in opposition to a defendant's motion to suppress. State v. Mayl, 154 Ohio App.3d 717, 2003- Ohio-5097, 798 N.E.2d 1101, 22. State v. O'Neill, 175 Ohio App.3d 402, 411; CLEVE M. JOHNSON ATTORNEY AT LAW 495 S. High Street, Suite 400 Columbus, OH 43215-5058 FAX (614) 358-6633 887 N.E.2d 394, 2008-Ohio-818, 33 (Ohio App. 6 Dist. Feb 29, 2008). Presumably any such memorandum contra must also be specific as well. Respectfully Submitted, 22

Cleve M. Johnson JOH 28/0002367 Attorney for Defendant 495 South High Street, Suite 400 Columbus, Ohio 43215-5058 Fax (614) 358-6633 CERTIFICATE OF SERVICE This is to certify that a copy of the foregoing document with attachment was served upon Lara N. Baker, Columbus City Prosecutor, attorney for plaintiff, 375 South High Street, Columbus, Ohio 43215, by facsimile transmission, on October 7, 2009. Cleve M. Johnson JOH 28/0002367 Attorney for Defendant 495 South High Street, Suite 400 Columbus, Ohio 43215-5058 Fax (614) 358-6633 CLEVE M. JOHNSON ATTORNEY AT LAW 495 S. High Street, Suite 400 Columbus, OH 43215-5058 FAX (614) 358-6633 23

OHIO IMPAIRED DRIVING LAW TYPES OF OFFENSES Operation under the influence of alcohol, drug of abuse or both. RC 4511.19(A)(1)(a). Operation with concentration of alcohol specified below. RC 4511.19(A)(1)(b)-(i). Alcohol Level Whole Blood Blood Serum or Plasma Breath Urine Low Test (A)(1)(b) <.17% <.204% (A)(1)(c) (A)(1)(d) <.17g <.238g (A)(1)(e) High Test (A)(1)(f) (A)(1)(g) (A)(1)(h) (A)(1)(i) Operation with concentration of controlled substance specified below. RC 4511.19(A)(1)(j)(i)-(x). Controlled Substance Urine Whole Blood, Blood Serum or Plasma Section No. Amphetamine (A)(1)(j)(i) Cocaine (A)(1)(j)(ii) Cocaine Metabolite (A)(1)(j)(iii) Heroin (A)(1)(j)(iv) Heroin Metabolite (6-monoacetyl morphine) (A)(1)(j)(v) L.S.D. (A)(1)(j)(vi) Marihuana (A)(1)(j)(vii) Marihuana Metabolite and under the influence (A)(1)(j)(viii)(I) Marihuana Metabolite (A)(1)(j)(viii)(II) Methamphetamine (A)(1)(j)(ix) Phencyclidine (A)(1)(j)(x) Salvia divinorum and salvinorin A Pending State Board of Pharmacy rule Pending State Board of Pharmacy rule (A)(1)(j)(xi) Operation under the influence of alcohol, drug of abuse or both, with prior OVI conviction in 20 years, and with current refusal of chemical test or tests. RC 4511.19(A)(2). Operation by person under age 21 with concentration of alcohol specified below. RC 4511.19(B)(1)-(4). <.08% Whole Blood Blood Serum or Plasma Breath Urine (B)(1) <.096% (B)(2) <.08g (B)(3) <.11g (B)(4) Having physical control while under the influence of alcohol, drug of abuse or both, or with concentration of alcohol or controlled substance equal to or greater than (A)(1)(b)-(e) or (j) amounts. RC 4511.194(B)(1)-(3). No. of Refusal/ Offense in 6 Years ADMINISTRATIVE LICENSE SUSPENSIONS Refusal of Chemical Test RC 4511.191(B) Type and Length 1 Driving Restricted Plates as of Suspension Privileges 2&3 Condition for Privileges 1 st Class C (1 year) After 30 days Optional Optional 2 nd Class B (2 years) After 90 days Optional Optional 3 rd Class A (3 years) After 1 year Optional Optional 4 th or more 5 years After 3 years Optional Optional Interlock as Condition for Privileges Failed 4 Chemical Test RC 4511.191(C) No. of Offense in 6 Years Type and Length 5 of Suspension Driving Privileges 6 Restricted Plates as Condition for Privileges Interlock as Condition for Privileges 1 st Class E (90 days) After 15 days Optional Optional 2 nd Class C (1 year) After 45 days Optional Optional 3 rd Required if alcoholrelated, optional if drug. Class B (2 years) After 180 days Optional 4 th Required if alcoholrelated, optional if or more Class A (3 years) After 3 years Optional drug. 1 Refusal suspension terminates upon guilty or no contest plea resulting in conviction, and time served is to be credited against judicial suspension. RC 4511.191(B)(2). However, a subsequent finding of not guilty does not affect the suspension. RC 4511.191(D)(1). 2 No privileges may be granted to offender with refusal who, within the preceding six years, has had three or more test refusals. RC 4510.13(A)(3). 3 Refusal of test in a offense in commercial vehicle results in a one-year commercial driver s (CDL) license disqualification while a second anytime results in lifetime CDL disqualification. RC 4506.17(D),(E). No privileges may be granted. RC 4510.13(A)(4). Also, CDL operators are subject to lower alcohol and controlled substance levels plus separate offenses under RC Chap. 4506. 4 Failed chemical test result is a concentration of alcohol or controlled substance equal to or greater than RC 4511.19(A)(1)(b)-(e) or (j) amounts. RC 4511.191(C)(1). 5 Suspension for failing test terminates upon guilty or no contest plea resulting in conviction, and time served is to be credited against any judicial suspension. RC 4511.191(C)(2). Under RC 4511.191(D)(1), any subsequent finding of not guilty does not affect the suspension. But note RC 4511.197(D), stating that if the suspension is continued upon appeal, a subsequent finding of not guilty terminates the suspension. 6 No privileges may be granted to offender with failed test who, within the preceding six years, has had three or more convictions or guilty pleas. RC 4510.13(A)(3). Appeal RC 4511.197 An administrative license suspension may be appealed at the initial appearance (5 day hearing), or within 30 days of the same. The scope of appeal is limited to determining whether one or more of the following conditions have not been met: 1. Whether the officer had reasonable ground to believe the person was OVI, OVUAC, or in physical control in violation of statute or municipal ordinance, and whether the person was in fact placed under arrest. RC 4511.197(C)(1). 2. Whether the officer requested the person to submit to a chemical test or tests. RC 4511.197(C)(2). 3. Whether the officer informed the person of consequences of taking or refusing test or tests; or for repeat OVI offender that would be required to be sentenced under RC 4511.19(G)(1)(c),(d), or (e), that in event of test refusal officer could use whatever reasonable means were necessary to ensure the person submitted to a blood test. RC 4511.197(C)(3). 4. Whichever of the following applies: a. if a test refusal suspension was imposed, whether the person refused to submit to test or tests requested by the officer, or b. if a failed test suspension was imposed, whether at the time of the offense, the bodily substance tested contained a prohibited concentration of alcohol or a listed controlled substance or metabolite. RC 4511.197(C)(4).

No. and Type of Offense in 6 years [simple OVI, low test or drug] 1 st in 6 years and either: [a] high test, or [b] refusal with prior in 20 years 1 st 2 nd PENALTIES OPERATING VEHICLE UNDER THE INFLUENCE RC 4511.19(A),(G) - 6 POINTS Degree of Offense M-1 M-1 in 6 years [simple OVI, M-1 low test or drug] 2 nd in 6 years and either: [a] high test, or [b] refusal with prior in 20 years in 6 years [simple OVI, low test or drug] 3 rd 3 rd in 6 years and either: [a] high test, or [b] refusal with prior in 20 years M-1 Unclassified misdemeanor Unclassified Misdemeanor Incarceration Fines Treatment 3 days jail or DIP. 3 $375 - Up to 6 months. 4 $1,075 6 days jail or 3 days jail and 3 days DIP. 3 $375 - Up to 6 months. 4 $1,075 10 days jail or 5 days jail and 18 days HAEM and/or CAM. 5 Up to 6 months. 4 20 days jail or 10 days jail and 36 days HAEM and/or CAM. 5 Up to 6 months. 4 30 days jail or 15 days jail and 55 days HAEM and/or CAM. 5 Up to 1 year. 4 60 days jail or 30 days jail and 110 days HAEM and/or CAM. 5 Up to 1 year. 4 $525 - $1,625 $525 - $1,625 $850 - $2,750 $850 - $2,750 Optional Optional Alcohol/drug assessment and recommended treatment mandatory. Alcohol/drug assessment and recommended treatment mandatory. Alcohol/drug addiction program mandatory. Alcohol/drug addiction program mandatory. License Suspension Class 5 (6 months to 3 years) Class 5 (6 months to 3 years) Class 4 (1 to 5 years) Class 4 (1 to 5 years) Driving Privileges 1&2 After 15 days After 15 days After 45 days After 45 days Class 3 After 180 (2 to 10 years) 7 days Class 3 After 180 (2 to 10 years) 7 days Restricted Plates/ Interlock Both optional Plates required for high-end. Interlock optional. Plates required. Interlock required if alcohol-related, optional if drug. Plates required. Interlock required if alcohol-related, optional if drug. Plates required. Interlock required if alcohol-related, optional if drug. Plates required. Interlock required if alcohol-related, optional if drug. Immobilization/ Forfeiture No No 90 days immobilization if registered to 6 90 days immobilization if registered to 6 Forfeiture if registered to 8 Forfeiture if registered to 8 Either: [a] 4 th or 5 th in 6 years, or th [b] 6 in 20 years [simple OVI, low test or drug] Either: [a] 4 th or 5 th in 6 years, or th [b] 6 in 20 years [ and high test or refusal] felony lifetime [simple OVI, low test or drug] 2 nd 2 nd felony lifetime, and either: [a] high test, or [b] refusal 1 st or 2 nd felony lifetime with RC 2941.1413 specification F-4 F-4 F-3 F-3 F-4 (1 st felony) F-3 (2 nd felony) 60 days local incarceration, up to 1 year; or 60 days prison, with option of additional 6 to 30 months. 9 120 days local incarceration, up to 1 year; or 120 days prison with option of additional 6 to 30 months. 9 $1,350 - $10,500 $1,350 - $10,500 60 days prison. $1,350 - Up to 5 years. 9 $10,500 120 days prison. $1,350 - Up to 5 years. 9 $10,500 F-3 penalties set forth in boxes above, and 1, 2, 3, 4, or 5 years prison consecutive to same. 9 $1,350 - $10,500 Alcohol/drug addiction program mandatory. Alcohol/drug addiction program mandatory. Alcohol/drug addiction program mandatory. Alcohol/drug addiction program mandatory. Alcohol/drug addiction program mandatory. Class 2 (3 years to life) Class 2 (3 years to life) Class 2 (3 years to life) Class 2 (3 years to life) Class 2 (3 years to life) After 3 years After 3 years After 3 years After 3 years After 3 years Plates required. Interlock required if alcohol-related, optional if drug. Plates required. Interlock required if alcohol-related, optional if drug. Plates required. Interlock required if alcohol-related, optional if drug. Plates required. Interlock required if alcohol-related, optional if drug. Plates required. Interlock required if alcohol-related, optional if drug. Forfeiture if registered to 8 Forfeiture if registered to 8 Forfeiture if registered to 8 Forfeiture if registered to 8 Forfeiture if registered to 8 1 No privileges may be granted on suspension imposed on offender who, within the preceding six years, has had three or more convictions or guilty pleas. RC 4510.13(A)(3). 2 First Ohio Revised Code OVI conviction results in one-year commercial driver s license (CDL) disqualification and second anytime results in lifetime disqualification, regardless of vehicle involved. RC 4506.16(D). Also, CDL operators are subject to lower alcohol and controlled substance levels plus separate offenses under RC Chap. 4506. 3 A DIP is a driver intervention program certified under RC 3793.10 provisions. See RC 4511.191(G)(1)(a). 4 A court located within a county served by board establishing an alternative sentencing center may sentence an eligible offender to center for an OVI and/or a driving under an OVI suspension. RC 307.932. 5 HAEM is house arrest with electronic monitoring. CAM is continuous alcohol monitoring. Within 60 days, court must issue finding of lack of jail space. RC 4511.19(G)(3). 6 Waiver may be granted, under RC 4503.235 conditions, for family or household member if completely dependent on vehicle, and immobilization would be undue hardship. 7 But court has authority to reduce the minimum period of a Class 3 suspension from two years to one year. RC 4510.13(A)(2)(b). 8 If vehicle forfeiture is required and title is assigned/transferred, offender may be fined value of vehicle per national auto dealers association publications. RC 4503.234(E). 9 Pursuant to RC 2967.19, court has limited power to order early release for felony OVI offender serving prison term imposed under RC 2929.13(G)(2). OPERATING VEHICLE AFTER UNDERAGE ALCOHOL CONSUMPTION RC 4511.19(B),(H) - 4 POINTS Restricted Degree of Incarceration Fines Treatment License Driving Plates/ Offense Suspension Privileges Interlock No. of Offense in 1 year 2 nd or more in 1 year 1 st No. of Offense M-4 0-30 days jail $0 - $250 Optional M-3 0-60 days jail $0 - $500 Optional Class 6 (90 days to 2 years) Class 4 (1 to 5 years) After 60 days After 60 days Optional Optional PHYSICAL CONTROL WHILE UNDER THE INFLUENCE RC 4511.194-0 POINTS Degree of Offense Incarceration Fines Treatment Any M-1 0-180 days jail $0 - $1,000 Optional License Suspension Class 7 optional (up to 1 year) Driving Privileges Restricted Plates/ Interlock Immobilization/ Forfeiture No No Immobilization/ Forfeiture No restrictions Optional No Judge Jennifer P. Weiler, Garfield Heights Municipal Court 2012 Jennifer P. Weiler. All rights reserved. With Am. Sub. H.B. 509 and Am. Sub. S.B. 337 changes, eff. 9-28-12.

PLEA CHECKLIST Jail credit. Where work. No contest versus not guilty. Insurance. Limiteds. DIP. From court. Probation. Counseling. Amount of pretrial dls. Suspension/stay/credit. Jury waiver. Time to pay. Enforcement date. 2261. Jail sheet. Impound. Yellow plates. Interlock. Points trouble? On probation? Is D valid if DUS? Tell regarding state ID. Will D expire during suspension?

SOURCES Weiler & Weiler, Ohio DUI Law, West Publishing. Drunk Driving Defense, Lawrence Taylor & Steve Oberman. Erwin, Defending Drunk Driving Cases, multi-volume loose-leaf. Wellman, Francis J., The Art of Cross Examination. Posner & Dodd, Cross-Examination: Science and Technique. BMV Website: http://www.bmv.ohio.gov/bmv.asp. Current legislation status: http://www.legislaturew.state.oh.us/search.cfm. OPEN: http://openonline.com. OACDL website (DUI alerts): http://www.oacdl.org/. Interstate compact states: http://aamva.org/drivers/mnu_drvcompacts.asp. NHTSA manuals: www.nhtsa.dot.gov/ 800-553-6847. NHTSA manuals: Ohio State Highway Patrol: 614-728-5307; fax 614-644-9749. NHTSA manuals: NACDL: http://nacdl.org/publications; 202-872-8600 x248. NHTSA manuals: Walden & Platt (experts) waldenplatt.com (website). NHTSA manuals: Bob LaPier (expert) consult@lapier.com (e-mail). Alternative jail: http://orianahouse.org/. ASSOCIATIONS Central Ohio Association of Criminal Defense Lawyers contact Chris Reinhart at CReinh2115@aol.com. Ohio Association of Criminal Defense Lawyers: www.oacdl.org. National College for DUI Defense: www.ncdd.com/index.html. National Association of Criminal Defense Lawyers: www.criminaljustice.org. LINKS Weiler Penalty Charts: www.ghmc.org/charts.asp. CamScanner Phone Scanner: www.intsig.com/en/camscanner.html.

Good Player Phone Video Player: https://itunes.apple.com/us/app/goodplayer /id416756729 or www.hustmobile.com/goodplayer/. Wondershare Convert Videos to MP4: www.wondershare.net/multimedia -software/?gclid=cp_fh7f6yrucfc5amgodivgarw. Getting Paid (Phone Swipe): www.phoneswipe.com/?q=node/2&s_kwcid=tc 9057 phoneswipe S e 21164901962&gclid=CP2ztI37yrUCFa1AMgodIRoACw. Historical weather (enter zip and scroll to bottom): www.wunderground.com. Good Reader (documents on phone/pad): www.goodiware.com/goodreader.html. Documents to Go: www.dataviz.com/dtg_home.html. VLC Media Player (plays most cop videos): www.videolan.org/vlc.

Huey Defense Firm OVI Notebook 2 D. Timothy Huey Attorney at Law Columbus, Ohio

Huey Defense Firm OVI Notebook Compiled and Provided by Attorney D. Timothy Huey Columbus Ohio Email DTHLAW@gmail.com Cell 614-519-3133 The materials that follow are intended to be used to for you to build an OVI defense notebook. It is recommended that you place them in a three (3) ring binder and keep the binder near your desk. This binder will give you ready at hand the basic materials you will need if you handle any OVI cases. Before you ever take an OVI case you should review these materials thoroughly. In my humble opinion the failure to be extremely familiar with all these materials is simply malpractice and too many attorneys accept OVI cases without ever really reviewing these important materials, Where the materials say Huey Law Summary you are welcomed to use them for your notebook but you may not publish or disseminate them in any manner without contacting the Huey Defense Firm. 1. List of DUI all DUI Offenses (rev 2013-3) 2. Summary of Ohio driving under the influence statutes 3. The primary OVI statute 4511.19 broken down and labeled by paragraph to allow you to easily find the precise provision you are looking for 4. Laws re CDL & OVI & ALS 5. SFST (Standardized Field Sobriety Test) Quick sheets based on 2006 NHTSA Manual 6. Ohio Department of Health (ODH) Chemical Testing Rules 7. Pleadings, Issues & Motions You MUST File or Raise in a DUI case and suggestions for those you Should or Might Want to File if you Want to Win If you have any questions about these materials please feel free to comtact me by email or telephone. Tim Huey

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Huey Defense Firm Law Summary - D. Timothy Huey - Attorney at Law Phone: 614-487-8667 email: dthlaw@gmail.com Offense DUI / OVI* Under the Influence List of DUI all DUI Offenses (rev 2013-3) Revised Code Sec. 4511.19 (A)(1)(a) Basis of Offense Operating a vehicle and is under the influence of alcohol, a drug of abuse, or alcohol and a drug of abuse. Aka the traditional DUI impaired offense. DUI Per Se Offenses In addition to the impaired or regular DUI charge any of the below can be charged if the officer obtained a chemical test result purporting to show that the person the specified alcohol level in their system when operating a vehicle OVI/DUI Per Se Blood 4511.19 (A)(1)(b) A blood alcohol concentration of.08 to.169 of one percent by weight of alcohol in the person s whole blood. OVI/DUI Per Se Plasma 4511.19 (A)(1)(c) A blood serum or plasma concentration of.096 to.204 of one per cent by weight per unit volume of alcohol in the person's blood serum or plasma. OVI/DUI Per se Breath 4511.19 (A)(1)(d) A breath alcohol concentration of.08 to.169 of 1 gram by weight per 210 liters of the person s breath. OVI/DUI Per se Urine 4511.19 (A)(1)(e) A urine alcohol concentration of.11 to.237 by weight of alcohol per 100 milliliters of the person s urine. High Tier OVI/DUI Per Se Offenses: Doubles Minimum jail time and fines & distinctive (DUI) plates are mandatory. High Tier Blood Per Se 4511.19 (A)(1)(f) A whole blood concentration equal to or greater than.17 percent by weight of alcohol in the person s blood. High Tier Plasma Per Se 4511.19 (A)(1)(g) A blood serum or plasma alcohol concentration of.204 percent or more by weight per unit volume of serum or plasma. High Tier Breath Per Se 4511.19 (A)(1)(h) A breath alcohol concentration equal to or greater than.170 of 1 gram by weight per 210 liters of breath. High Tier Urine Per Se 4511.19 (A)(1)(i) A Urine Test with concentration equal to or greater than.238 percent, by weight, of alcohol per 100 milliliters of urine. DUI Drugs Per Se 11 offenses See list of marijuana and other drug offenses and per se drug levels attached. Criminal Refusal 4511.19 (A)(2) Committing a DUI and refusing the chemical test(s) if within past 20 years has been previously OVI offense under 4511.19(A)oe(B) or municipal code. Under 21 OVUAC 4511.19(B) OVUAC Per se Blood OVUAC Per se Blood Plasma OVUAC per se Breath OVUAC per se Urine 4511.19 (B)(1) 4511.19 (B)(2) 4511.19 (B)(3) 4511.19 (B)(4) Whole blood concentration of at least.020 per cent but less than.080 per cent by weight per unit volume of alcohol in the person's whole blood. blood serum or plasma concentration of at least.030 but less than.096 of one per cent by weight per unit volume of alcohol in the person's blood serum or plasma. Breath alcohol concentration of at least.020 grams but less than.080 grams by weight of alcohol per two hundred ten liters of the person's breath. Urine alcohol concentration of at least.028 gram but less than eleven-hundredths of one gram by weight of alcohol per one hundred milliliters of the person's urine

Huey Law Summary - D. Timothy Huey - Attorney at Law Phone: 614-487-8667 email: dthlaw@gmail.com DUI Drug Offenses (2013-3) DUI / OVI Per Se Drug Offenses ORC 4511.19(A)(1)(j) In recent years the Ohio Legislature has been persuaded that it is more important to make it easy and simple to gain a conviction where marijuana or other drug use is suspected than it is to have laws that make sense. The new OVI Per Se Drug section creates OVI offenses and imposes OVI penalties for having a substance or the inactive metabolite of the substance- in your blood, blood plasma or urine. Under these laws complete sobriety and the total lack of impairment are irrelevant. The only DUI drug case statute that mentions impairment is 4511.19(A)(1)(j)(viii)(I), which sets a very low marijuana / marijuana metabolite level, where they have to prove impairment (e.g. prove a violation of the standard DUI charge 4511.19(A)(1)(a)) before the per se limit comes into play and thus is redundant. Note the other marijuana section (4511.19(A)(1) (j)(viii)(ii)) requires no proof of impairment whatsoever. Offense ORC Sec. Basis of Offense OVI Drug Per Se ORC 4511.19 500 ng per ml urine 100 ng per ml of whole blood, plasma, serum Amphetamine (A)(1)(j)(i) OVI Drug Per Se 4511.19 150 ng per ml urine 50 ng per ml of whole blood Cocaine (A)(1)(j)(ii) OVI Drug Per Se 4511.19 150 ng per ml urine 50 ng per ml of whole blood Cocaine Metabolite (A)(1)(j)(iii) OVI Drug Per Se 4511.19 2000 ng per ml urine 50 ng per ml of whole blood Heroin (A)(1)(j)(iv) OVI Drug Per Se Heroin Metabolite 4511.19 (A)(1)(j)(v) (6-monoacetyl morphine) 10 ng per ml urine 10 ng per ml of whole blood OVI Drug Per Se 4511.19 25 ng per ml urine 10 ng per ml of whole blood LSD (A)(1)(j)(vi) OVI Drug Per Se 4511.19 10 ng per ml urine 2 ng per ml of whole blood, serum or plasma Marijuana (A)(1)(j)(vii) OVI Drug Per Se Marijuana Metabolite & Impairment 4511.19(A)(1) (j)(viii)(i) Must be under the influence of alcohol or drugs and have 15 ng per ml urine 5 ng per ml whole blood, serum or plasma (should require a conviction under 4511.19(A)(1)(a) & thus is redundant OVI Drug Per Se Marijuana Metabolite w/o Impairment 4511.19(A)(1) (j)(viii)(ii) 35 ng per ml urine 50 ng per ml whole blood, serum or plasma OVI Drug Per Se 4511.19 500 ng per ml urine 100 ng per ml whole blood Methamphetamine (A)(1)(j)(ix) OVI Drug Per Se 4511.19 25 ng per ml urine 10 ng per ml whole blood Phencyclidine (A)(1)(j)(ix) Salvia Divinorum/ Salvinorin A (A)(1)(j)(xi) The state board of pharmacy is supposed to adopt a rule pursuant to section 4729.041 setting forth the Per Se amount for OVI it has not

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Huey Defense Firm Law Summaries - Tim Huey DTHLAW@gmail.com office 614-487-8667 cell 614-519-3133 SUMMARY OF OHIO DRIVING UNDER THE INFLUENCE STATUTES COMMON TERMS, ACRONYM(S) FOR DRIVING UNDER THE INFLUENCE: Drunk Driving, Impaired Driving, OVI, OMVI, DUI, and DWI are interchangeable in Ohio. The official acronym or term is OVI as, in 2003, the Ohio legislature invented the term Operating a Vehicle (while) Impaired or OVI as the catchall term. Ohio Lawyers tend to use the term DUI most of the time, rather than OVI, as DUI is a more universal term. Note: OVUAC (aka OMVUAC) is a legally distinct term used for certain OVI charges that apply to those less than age 21. (See OVUAC below.) PROHIBITED VEHICULAR ACTIVITY: "operate." Note: Until recently, in Ohio, operate and DUI included activity in completely stationary vehicles but (post 2003) operation is to cause or have caused movement of the vehicle. (But see related offense of Physical Control. ) The phrase have caused movement is vague and problematic to apply and is likely to be interpreted inconsistently by courts, thus it may be ripe for litigation. COVERED VEHICLES OR DEVICES: "any vehicle, streetcar or trackless trolley." "Vehicle is defined broadly; every device motorized or not by which any person or property may be transported or drawn upon a road. Includes a bicycle (with or without a motor) but excludes any other device moved by human power. Also excludes any motorized wheelchair, any electric personal assistive mobility device, anything using overhead electric trolley wires or used exclusively upon stationary rails or tracks. COVERED LOCATIONS FOR DRINKING-DRIVING OFFENSES: "within this state" whether on a road or not. Note the ALS (officers right to request a chemical test see below) only applies when vehicle is traveling on a highway or any public or private property used by the public for vehicular travel or parking within this state or (being) in physical control of a vehicle. RC 4511.191 DRINKING-DRIVING OFFENSES: [ORC 4511.19(A)(1)(a-i), 4511.19(B) 4511.19(A)(2)] (1) OVI Impaired ( 4511.19 (A)(1)(a)) Operating, etc., while under the influence of alcohol, a drug of abuse, or alcohol and a drug of abuse. (2) OVI Per Se Offenses. ( 4511.19 (A)(1)(b-i) Ohio has two per se tiers for alcohol in each bodily substance. The per se offenses are operating, etc, with a: (A) Blood Alcohol Content (BAC whole blood) of.08 (low tier) or.170 (high tier);

(B) Blood Plasma Content (BAC blood serum) of.096 (low tier) or.204 (high tier); (C) Breath Alcohol Content (BrAC) of.08 (low tier) or.170 (high tier); (D) Urine Alcohol Content (UrAC) of.11 (low tier) or.238 (high tier.) (5) OVI drug Per Se. See 4511.19(A)(1)(j) for listed per se amounts for Amphetamine, Cocaine, Cocaine Metabolite, Heroin, Heroin Metabolite, LSD, Marijuana, Marijuana Metabolite & Impairment, Marijuana Metabolite w/o Impairment, Methamphetamine, Phencyclidine (4) OVUAC (OVI Under Age Consumption; 4511.19 (B)) is a per se applied to those less than 21 years old who operate, etc with a.02 BAC,.03 BAC-serum,.02 BrAC, or.028 UrAC. (Can also be charged with OVI impaired and low and high tiers if applicable. An OVUAC conviction is counted as a prior OVI.) (5) OVI Criminal Refusal ( 4511.19 (A)(2) created 9-23-04.) Committing an OVI offense if person has already been convicted of OVI or OVUAC within 20 years of new offense and person refuses a chemical test after being requested to take a test and after being provided the advisals contained on the Implied Consent form (BMV 2255 Form.) Notes: does not apply to optional roadside preliminary breath tests (PBT.) Person must be found guilty of the new OVI to be convicted of OVI Criminal Refusal. (6) Physical Control (of vehicle while impaired ( 4511.194): Requires proof of elements of an OVI (impaired or per se) except for the element of operation (movement.) Only requires that one be in the driver's position having possession of the ignition key or other ignition device. (Physical Control is not considered an OVI conviction and does not constitute a prior OVI conviction.) DEGREE OF IMPAIRMENT REQUIRED FOR CONVICTION: Impairment to a degree that deprives one of the clearness of intellect and self control that one would otherwise possess (see State v. Hardy, 28 Ohio St. 2d 89, 276 N.E. 2d 247 (1971)) or appreciably impaired the ability to drive. (See Ohio Jury Instructions -OJI.) PENALTIES FOR DRINKING-DRIVING AND PHYSICAL CONTROL OFFENSES: [ORC 4511.19(A)(B) and (G). See also 4510.02 - Class Suspensions, 4510.036 - Points.] MISDEMEANOR OVIS Unless otherwise noted herein OVI offenses are First Degree Misdemeanors. The following apply to Low Tier OVI Per Se and OVI Impaired misdemeanor offenses. (See additional mandatory jail time, below, for High Tier OVI per se and Criminal Refusal offenses.) (1) First OVI Offense - no prior (within 6 years*): Jail term of 3 days to 6 months; fine of $375 to $1,075; license suspension (Class 5) of 180 days to 3 years. 6 points against License. (See also ALS Hard Time below.)

Note all OVI license suspensions include a period of Hard Time with no privileges; the Hard Time Suspension periods for an OVI conviction are the same time periods as a corresponding ALS Suspension. (However, the ALS and OVI suspensions are separate.) See ALS below and ALS Hard Time to ascertain when an offender would be eligible for limited privileges either pretrial or after conviction. (2) Second OVI Offense - 1 prior (within 6 years*): Jail term of 10 days to 6 months; fine of $525 to $1,625; license suspension (Class 4) of 1 year to 5 years.(see Hard Time below.) Vehicle immobilized for 90 days. 6 points against license. (3) Third OVI Offense - 2 priors (within 6 years*): Jail term of 30 days to 1 year; fine of $850 to $2,750; license suspension (Class 3) of 2 years to 10 years. (See Hard Time below.) Vehicle subject to forfeiture. 6 points against license. (This offense is an unclassified misdemeanor allowing for a 1 year sentence and the high fine.) Double Jail Time for High Tier Per Se and Criminal Refusal: Conviction of a High Tier Per Se offense or Criminal Refusal offense (refusal and prior OVI within 20 years), will double each of the minimum periods of incarceration specified above. Note: Criminal Refusal requires proof and conviction of the new OVI Impaired offense. High (and Low) Tier Per Se charges and OVUAC do not require proof or conviction of impairment. Distinctive License Plates: (aka Drunk Plates ) Conviction for most OVI offenses and some other traffic offenses require the use of Distinctive License Plates. (Currently red & yellow.) See 4511.19 (G)(4), 4510.13 (A)(7), 4503.231, 4507.02. Note: For any OVI conviction court may require them. The court must require the offender to obtain distinctive plates in order to grant any driving privileges- if any of the following apply: If the person has any prior OVIs within 6 years or if the person has no priors but is charged with a High Tier or Criminal Refusal. FELONY OVIS: If the person has 1 prior felony, 3 prior OVI convictions w/in 6 years or 5 prior OVI convictions in 20 years an OVI offense is a Felony. Felony sentences are governed by both the OVI statute (4511.19 (G)(1)(b)-(e)) as well as the general Felony Sentencing Statutes (2929.13 etc sec) and specific Felony sentencing statutes (e.g. 2941.1413.) Because of the interplay (and constant changes) in these statutes the below is only a general guide to felony OVI sentences. The minimum sentence authorized by law in a given case could be much greater than shown below. Note: as with misdemeanors, felony minimum sentences are doubled (as indicated below) for High Tier or Criminal Refusal offenses. (4) Felony 4 OVI (RMO or Repeat Misdemeanor Offender). If a person has 3 or 4 prior misdemeanor OVI convictions within 6 years or 5 prior misdemeanor OVI convictions

within in 20 years OVI is a Felony of the Fourth Degree. Note: although they are both F- 4 s and carry the same fines, suspensions and vehicle sanctions 5 priors in 20 years carries significantly increased jail / prison time. (See 5 priors w/in 20 specification below.) For F-4 OVIs without the 5 in 20 spec the following apply. The judge can either impose local incarceration* and/or jail term ranging from 60 days (low tier) or 120 days (High Tier or Crim Refusal) to 1 year OR- a prison term of 60 days (Low tier) or 120 days (High Tier or Crim. Refusal) plus an (optional) addition prison term of 6 to 30 months. Additional penalties include post release control e.g. (probation / parole) with conditions, including mandatory alcohol / drug treatment; fine of $1,350 to $10,500; license suspension (Class 2) of 3 years to life. (See Hard Time below.)vehicle subject to forfeiture. 6 points against license. (*Local incarceration can, at the judge s discretion, be served in jail, a community-based correctional facility, a halfway house, or an alternative residential facility.) (5) Felony 3 OVI - (RFO) Repeat Felony Offender: Any new OVI with a prior Felony OVI Conviction is a Felony 3. Where there is a prior Felony and a total of 4 other prior felony or misdemeanor convictions OVI is an F-3 but the 5 within 20 Spec (below) applies re jail / prison time. Low Tier, High Tier and Criminal Refusal distinctions apply. An F-3 OVI carries a mandatory prison term of 60 days (Low Tier) or 120 days (High Tier or Crim Refusal) up to 5 years in prison. Additional penalties include post release control (probation / parole) with conditions, including mandatory alcohol / drug treatment; fine of $1,350 - $10,500, license suspension (Class 2) 3 years to life. (See Hard Time below.). Vehicle subject to forfeiture. 6 points against license. Five Priors within 20 Years Specification: When a person has 5 prior OVI convictions and the state sets this out as a Specification in the indictment and proves the priors and the OVI at trial the offender shall be sentenced to a mandatory prison term of one, two, three, four, or five years. (See RC 4511.19 (G)(1)(d)&(e), 2941.1413 and 2929.13(G)) Obviously, the same applies if the offender pleads guilty to the OVI and to the specification. The statutes provide that is prison term shall be served consecutively to and prior to the prison term imposed for the underlying [OVI] offense and consecutively to any other mandatory prison term imposed in relation to the offense. Note about Six year look back : Caveat 1: The 6 year look back does not apply if person has 5 priors in 20 years (see above.) AND may not apply under local codes (see Local OVI Laws below.) Caveat 2: The 6 year look back period is likely to be modified / eliminated by the legislature in the future Caveat 3: A Judge can look back beyond 6 years in deciding jail time and other penalties to impose ( look back only sets the minimum that court must impose) and can impose significantly more than the minimum penalties. In any event, in making decisions about a DUI case one should not assume that in 6 years a conviction will not matter

Expungement Sealing of Records: In Ohio an OVI (DUI) can not be expunged. OTHER OVI RELATED MISDEMEANORS OVUAC A Misdemeanor 4 Jail term of 0-30 days; Fine $0-250; license suspension (Class 6) 90 days to 2 years hard time (no privileges) 60 days. Repeat OVUAC - OVUAC with 1 to 4 OVI and/or OVUAC convictions within 1 year: Jail time 0-60; Fine $0-500; suspension (Class 4) 1 to 5 years hard time 60 days. 4 points against driver s license. Note: A OMVUAC did not used to count as a prior OVI, however the statutes were changed to read that an OVUAC or an earlier OMVUAC is conviction is treated as a prior OVI conviction. Physical Control: Is a 1st degree Misdemeanor. It carries no mandatory jail time or suspension; is not a prior OVI for mandatory sentencing and (as non-moving violation) no points should be chargeable against driver s license. Jail 0 to 180 days; Fine $0 to $1,000; license suspension (Class 7) 0 days to 1 year. A $475.00 reinstate fee will be imposed by the BMV. Hard Time License Suspensions: Hard time periods imposed for OVI convictions are identical to those imposed administratively (see ALS Hard Time below.) If convicted of the OVI credit will be for the time spent under administrative suspensions and for the hard time served prior to OVI conviction / sentencing. Local OVI Laws. Municipalities, villages etc can adopt ordinances with harsher mandatory sentences for OVI. (For example: The Columbus Ohio Municipal Code does not contain the 6 year look back so very old priors count.) However, currently most ordinances attempt to be consistent with the Revised Code. STATUTORY DRINKING-DRIVING PRESUMPTIONS: None exist. In 1983 the Ohio legislature, when drafting the per se laws, eliminated all prior (chemical test) presumptions in OMVI cases. Unfortunately this (omission) left a void in terms of instructions to jurors or judges as to what the results of a chemical test mean and the weight the results are to be given. Not surprisingly, after presumption was eliminated courts began treating the results as practically infallible. Thus counsel must be prepared and creative in challenging the accuracy and weight of the results. (ALS) ADMINISTRATIVE IMPLIED CONSENT LAWS & HARD TIME SUSPENSIONS: [ORC 4511.191 et seq.] In Ohio this process is known as the ALS (Administrative License Suspension) law / process. Your diver s license will be subject to immediate seizure and immediate suspension of privileges if you are arrested for DUI and asked to submit to a chemical test and refuse or test over one of the per se limits (listed above). A period of hard time suspension will be imposed after which you can ask for limited (mostly limited to occupational) driving privileges. The appeal if you file one- is handled by the same court as the criminal case, although the ALS case is a separate civil case. The appeal can be filed up to 30 days after

the initial appearance, but to be safe should be filed at the Initial Appearance, which should be held no more that 5 days after arrest. In accordance with prior practice courts often allow an oral appeal of the ALS at the Initial Appearance, but the statutes no longer provide for this and the best practice is to file are written appeal. (1) Tests permitted: Blood, blood plasma, breath or urine as designated by law enforcement agency. The statute allows officer to request more than one test, however that may conflict with information given to / read to the suspect by the officer. (2) Type of advisement required: Of the administrative (civil) consequences of both submitting to and refusing chemical testing as setforth on a form (2255 Form) prepared by BMV. Note: the advisements are misleading, in part because officers do not advise suspect of the criminal penalties and license sanctions that will accrue with a test above the per se limit or a refusal. (3) Refusal Sanctions & Hard Time Suspensions (License suspension is based on prior refusals, convictions, and guilty pleas within 6 years): 1st = 1 year (30 days hard time) 2nd = 2 years (90 days hard time) 3rd = 3 years (1 year hard time) 4th = 5 years (3 years hard time.) See also Criminal Refusal and penalties above. (4) Admissibility of refusal: If one simply refuses a chemical test that refusal is generally admissible in criminal case however that may not be the case if the person s request for an attorney was immediately treated as a refusal by the officer. (5)Positive Test (for testing.08 (or.096 plasma or.11 urine) or above) Administrative Per Se Sanctions and Hard Time Suspensions (License suspension is based on prior convictions and guilty pleas within 6 years): 0 priors = 90 days (15 days hard time) 1 prior = 1 year (30 days hard time) 2 priors = 2 years (180 days hard time) 3 priors = 3 years (3 years hard time.) (6) Reinstatement Fees: If an ALS suspension is imposed by the officer and not invalidated (via appeal or proper motion) by the court you will be required to pay a reinstatement fee of $475.00. Note if you are convicted of OVI you will also be required to pay a $475.00 reinstatement fee. The BMV will often try to collect both fees, although, generally, only payment of one $475.00 fee should be required. CHEMICAL TEST LAWS: [ORC 4511.19(D), 191 et sec] (1) General provisions: A chemical test must be performed in accordance with methods approved by the Director of Health and by a person possessing a valid permit to do so

issued by the Director of Health. Sample must be taken within 3 hours of driving to be admitted in per se case or admitted without an expert. (The 2 hour limit changed to 3 hours in 2006 but statute seems to require the request for test still be made withing 2 hours.) (2) Administrative rules & regulations: Issued by Director of Health. (4) In response to State v Mayl the legislature changed the statute to provide that hospital tests not performed in accordance with the ODH rules may be admitted in impaired cases (not per se cases) with expert testimony. As no specification to the type of expert or what testimony is required counsel should argue that this provision takes the rules for admissibility of these tests completely out of the OVI statutes and thus Evidence Rule 702 applies. Expert testimony should be required at to both: the accuracy of the testing and whether the results are relevant to the issue of impairment. (3) Disclosure of test information: Is supposed to be upon request, the results of the test must be made available to person who was tested or attorney immediately upon completion of test but no sanction for not immediately disclosing. BLOOD-DRAWING STATUTE: Only a physician, registered nurse, or a qualified technician or chemist may withdraw blood for purposes of police testing. INDEPENDENT TEST STATUTE: The person tested may have a physician or other qualified person of his or her own choosing administer a chemical test in addition to the police test. But this is a right that (as yet) has not been enforced as the failure or inability to obtain such an additional test does not preclude the admission of the police test and the officer s failure to advise suspect of right to an independent test does not preclude admission of the police test. PLEA BARGAINING STATUTE (restricting reduction of charges): None exists. None of these acronyms should be taken too literally, for example; in creating the OVI acronym the legislature dropped the M (for Motor ) from the previous catch-all term OMVI in order to emphasize that drunk driving can include bicycles and other things that are not motorized. However, the O could have been changed to D (for Driving ) as, at the same time, the legislature also re-defined operate to mean driving (or at least moving) a vehicle and then created a separate, distinct offense of Physical Control that does apply to stationary or parked vehicles. With the Criminal Refusal / refusal it is clear that the legislature tried to make the plates mandatory in all cases, however because of the interplay between local OVI ordinances and the state statues careful review of the statutes is suggested. With Felony OVIs because there are so many variables that will increase the minimum sentences it takes a great deal of knowledge and work to simply ascertain what the minimum and maximum penalties are in a specific case.

This is especially true if the offender has both 3 priors w/in 6 years and 5 priors in 20 years and/or is charged with either a criminal refusal or a high tier per se. GENERAL NOTES ABOUT THE ABOVE RMO (Repeat Misdemeanor Offender) and RFO (Repeat Felony Offender) are terms are terms coined by Ohio DUI attorney Timothy Huey (see below) and neither those terms nor High Tier and Low Tier are as yet found in the code. (High Tier and Low Tier are now used by lawyers and judges.) RMO and RFO above are used because as the Ohio Legislature adds more look back periods (such as the new 5 in 20) terms such as Fourth Offense or Fifth Offense become both misleading and meaningless. Thus, we have grouped the offenses by Misdemeanor and Felony designations. However, the statutes, on this point, are not a model of clarity, 4511.19(G) is particularly hard to decipher. Anyone facing a 5 in 20 Spec should carefully review and dissect RC 4511.19 (G)(1)(d)&(e), 2941.1413 and 2929.13(G). The BMV has been, on occasion, imposing both an ALS fee of $475.00 and the $475.00 Physical Control Fee. The author suggests that trial courts have the authority / should be able to order only one such fee be required. Courts often presume the term within 5 days means within 5 business days, but there are several different ways to interpret the term.

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Huey Law Summary - D. Timothy Huey Esq. Ph 614-487-8667 Cell 614-519-3133 - email: dthlaw@gmail.com The primary OVI statute 4511.19 Broken Down by Paragraph to Allow you to easily find the precise provision you are looking for 4511.19. Driving while under the influence of alcohol or drugs or with certain concentration of alcohol in bodily substances; chemical analysis. 4511.19 (A) (1) No person shall operate any vehicle, streetcar, or trackless trolley within this state, if, at the time of the operation, any of the following apply: 4511.19 (A)(1)(a) Impaired Offense (a) The person is under the influence of alcohol, a drug of abuse, or a combination of them. 4511.19 (A)(1)(b-i) Per Se Offenses (A)(1)(b) Per Se Blood Low Tier.08-.170 (b) The person has a concentration of eight-hundredths of one per cent or more but less than seventeen-hundredths of one per cent by weight per unit volume of alcohol in the person's whole blood. (A)(1)(c) Per Se Blood Plasma Low Tier.096-.204 (c) The person has a concentration of ninety-six-thousandths of one per cent or more but less than two hundred four-thousandths of one per cent by weight per unit volume of alcohol in the person's blood serum or plasma. (A)(1)(d) Per Se Breath Low Tier.08-.170 (d) The person has a concentration of eight-hundredths of one gram or more but less than seventeen-hundredths of one gram by weight of alcohol per two hundred ten liters of the person's breath. (A)(1)(e) Per Se Blood Urine Low Tier.110-.238 (e) The person has a concentration of eleven-hundredths of one gram or more but less than two hundred thirty-eight-thousandths of one gram by weight of alcohol per one hundred milliliters of the person's urine. (A)(1)(f) Per Se Blood High Tier.170+ (f) The person has a concentration of seventeen-hundredths of one per cent or more by weight per unit volume of alcohol in the person's whole blood. (A)(1)(g) Per Se Blood Plasma High Tier.204+ (g) The person has a concentration of two hundred four-thousandths of one per cent or more by weight per unit volume of alcohol in the person's blood serum or plasma. (A)(1)(h) Per Se Breath High Tier.170+ (h) The person has a concentration of seventeen-hundredths of one gram or more by weight of alcohol per two hundred ten liters of the person's breath. (A)(1)(i) Per Se Urine High Tier.238+ (i) The person has a concentration of two hundred thirty-eight-thousandths of one gram or more by weight of alcohol per one hundred milliliters of the person's urine. (A)(1)(j) Per Se Controlled Substance Offense-Blood/Urine

(j) Except as provided in division (K) of this section, the person has a concentration of any of the following controlled substances or metabolites of a controlled substance in the person s whole blood, blood serum or plasma, or urine that equals or exceeds any of the following: (A)(1)(j)(i) Amphetamine 500 Urine/100 Blood (i) The person has a concentration of amphetamine in the person s urine of at least five hundred nanograms of amphetamine per milliliter of the person s urine or has a concentration of amphetamine in the person s whole blood or blood serum or plasma of at least one hundred nanograms of amphetamine per milliliter of the person s whole blood or blood serum or plasma. (A)(1)(j)(ii) Cocaine 150 Urine/50 Blood (ii) The person has a concentration of cocaine in the person s urine of at least one hundred fifty nanograms of cocaine per milliliter of the person s urine or has a concentration of cocaine in the person s whole blood or blood serum or plasma of at least fifty nanograms of cocaine per milliliter of the person s whole blood or blood serum or plasma. (A)(1)(j)(iii) Cocaine Metabolite 150 Urine/50 Blood (iii) The person has a concentration of cocaine metabolite in the person s urine of at least one hundred fifty nanograms of cocaine metabolite per milliliter of the person s urine or has a concentration of cocaine metabolite in the person s whole blood or blood serum or plasma of at least fifty nanograms of cocaine metabolite per milliliter of the person s whole blood or blood serum or plasma. (A)(1)(j)(iv) Heroin (iv) The person has a concentration of heroin in the person s urine of at least two thousand nanograms of heroin per milliliter of the person s urine or has a concentration of heroin in the person s whole blood or blood serum or plasma of at least fifty nanograms of heroin per milliliter of the person s whole blood or blood serum or plasma. (A)(1)(j)(v) Heroin Metabolite 10 Urine/10 Blood (v) The person has a concentration of heroin metabolite (6-monoacetyl morphine) in the person s urine of at least ten nanograms of heroin metabolite (6-monoacetyl morphine) per milliliter of the person s urine or has a concentration of heroin metabolite (6-monoacetyl morphine) in the person s whole blood or blood serum or plasma of at least ten nanograms of heroin metabolite (6- monoacetyl morphine) per milliliter of the person s whole blood or blood serum or plasma. (A)(1)(j)(vi) L.S.D. 25 Urine/10 Blood (vi) The person has a concentration of L.S.D. in the person s urine of at least twenty-five nanograms of L.S.D. per milliliter of the person s urine or a concentration of L.S.D. in the person s whole blood or blood serum or plasma of at least ten nanograms of L.S.D. per milliliter of the person s whole blood or blood serum or plasma. (A)(1)(j)(vii) Marihuana 10 Urine/2 Blood (vii) The person has a concentration of marihuana in the person s urine of at least ten nanograms of marihuana per milliliter of the person s urine or has a concentration of marihuana in the person s whole blood or blood serum or plasma of at least two nanograms of marihuana per milliliter of the person s whole blood or blood serum or plasma. (A)(1)(j)(viii)(I) Marihuana metabolite Gas Chromatography- plus Impaired by Alcohol Level = 15 Urine/5 Blood - Note requires impairment by alcohol plus the test and thus is meaningless. If have impairment by alcohol = OVI impaired no need for MJ per se (I) The person is under the influence of alcohol, a drug of abuse, or a combination of them, and, as measured by gas chromatography mass spectrometry, the person has a concentration of marihuana metabolite in the person s urine of at least fifteen nanograms of marihuana metabolite

per milliliter of the person s urine or has a concentration of marihuana metabolite in the person s whole blood or blood serum or plasma of at least five nanograms of marihuana metabolite per milliliter of the person s whole blood or blood serum or plasma. (A)(1)(j)(viii)(II) Marihuana metabolite Gas Chromatography- High Test 35 Urine/50 Blood (II) As measured by gas chromatography mass spectrometry, the person has a concentration of marihuana metabolite in the person s urine of at least thirty-five nanograms of marihuana metabolite per milliliter of the person s urine or has a concentration of marihuana metabolite in the person s whole blood or blood serum or plasma of at least fifty nanograms of marihuana metabolite per milliliter of the person s whole blood or blood serum or plasma. (A)(1)(j)(ix) Methamphetamine 500 Urine/100 Blood (ix) The person has a concentration of methamphetamine in the person s urine of at least five hundred nanograms of methamphetamine per milliliter of the person s urine or has a concentration of methamphetamine in the person s whole blood or blood serum or plasma of at least one hundred nanograms of methamphetamine per milliliter of the person s whole blood or blood serum or plasma. (A)(1)(j)(x) Phencyclidine 25 Urine/10 Blood (x) The person has a concentration of phencyclidine in the person s urine of at least twenty-five nanograms of phencyclidine per milliliter of the person s urine or has a concentration of phencyclidine in the person s whole blood or blood serum or plasma of at least ten nanograms of phencyclidine per milliliter of the person s whole blood or blood serum or plasma. (A)(1)(j)(xi) Salvia Divinorum/Salvinorin A (xi) The state board of pharmacy has adopted a rule pursuant to section 4729.041 of the Revised Code that specifies the amount of salvia divinorum and the amount of salvinorin A that constitute concentrations of salvia divinorum and salvinorin A in a person s urine, in a person s whole blood, or in a person s blood serum or plasma at or above which the person is impaired for purposes of operating any vehicle, streetcar, or trackless trolley within this state, the rule is in effect, and the person has a concentration of salvia divinorum or salvinorin A of at least that amount so specified by rule in the person s urine, in the person s whole blood, or in the person s blood serum or plasma. 4511.19 (A)(2) Criminal Refusal (2) No person who, within twenty years of the conduct described in division (A)(2)(a) of this section, previously has been convicted of or pleaded guilty to a violation of this division, division (A)(1) or (B) of this section, or a municipal OVI offense shall do both of the following: (a) Operate any vehicle, streetcar, or trackless trolley within this state while under the influence of alcohol, a drug of abuse, or a combination of them; (b) Subsequent to being arrested for operating the vehicle, streetcar, or trackless trolley as described in division (A)(2)(a) of this section, being asked by a law enforcement officer to submit to a chemical test or tests under section 4511.191 [4511.19.1] of the Revised Code, and being advised by the officer in accordance with section 4511.192 of the Revised Code of the consequences of the person's refusal or submission to the test or tests, refuse to submit to the test or tests. 4511.19 (B) OVUAC Offenses (B) No person under twenty-one years of age shall operate any vehicle, streetcar, or trackless trolley within this state, if, at the time of the operation, any of the following apply:

4511.19 (B)(1) OVUAC Blood (1) The person has a concentration of at least two-hundredths of one per cent but less than eighthundredths of one per cent by weight per unit volume of alcohol in the person's whole blood. 4511.19 (B)(2) OVUAC Blood Plasma (2) The person has a concentration of at least three-hundredths of one per cent but less than ninety-six-thousandths of one per cent by weight per unit volume of alcohol in the person's blood serum or plasma. 4511.19 (B)(3) OVUAC Breath (3) The person has a concentration of at least two-hundredths of one gram but less than eighthundredths of one gram by weight of alcohol per two hundred ten liters of the person's breath. 4511.19 (B)(4) OVUAC Urine (4) The person has a concentration of at least twenty-eight one-thousandths of one gram but less than eleven-hundredths of one gram by weight of alcohol per one hundred milliliters of the person's urine. 4511.19 (C) allows overlapping charges but only one conviction (C) In any proceeding arising out of one incident, a person may be charged with a violation of division (A)(1)(a) or (A)(2) and a violation of division (B)(1), (2), or (3) of this section, but the person may not be convicted of more than one violation of these divisions. 4511.19(D)(1) Statutory Predicate for admissibility of test results 4511.19(D)(1)(a) Expert Testimony (D)(1)(a) In any criminal prosecution or juvenile court proceeding for a violation of division (A)(1)(a) of this section or for an equivalent offense that is vehicle-related, the result of any test of any blood or urine withdrawn and analyzed at any health care provider, as defined in section 2317.02 of the Revised Code, may be admitted with expert testimony to be considered with any other relevant and competent evidence in determining the guilt or innocence of the defendant. 4511.19(D)(1)(b) (Three hour limit) (D)(1)(b) In any criminal prosecution or juvenile court proceeding for a violation of division (A) or (B) of this section or for an equivalent offense that is vehicle-related, the court may admit evidence on the concentration of alcohol, drugs of abuse, controlled substances, metabolites of a controlled substance, or a combination of them in the defendant s whole blood, blood serum or plasma, breath, urine, or other bodily substance at the time of the alleged violation as shown by chemical analysis of the substance withdrawn within three hours of the time of the alleged violation. The three-hour time limit specified in this division regarding the admission of evidence does not extend or affect the two-hour time limit specified in division (A) of section 4511.192 of the Revised Code as the maximum period of time during which a person may consent to a chemical test or tests as described in that section. 4511.19(D)(1)(b)(continued-who can draw blood for officers) The court may admit evidence on the concentration of alcohol, drugs of abuse, or a combination of them as described in this division when a person submits to a blood, breath, urine, or other bodily substance test at the request of a law enforcement officer under section 4511.191 of the Revised Code or a blood or urine sample is obtained pursuant to a search warrant. Only a physician, a registered nurse, an emergency medical technician-intermediate, an emergency medical technician-paramedic, or a qualified technician, chemist, or phlebotomist shall withdraw

a blood sample for the purpose of determining the alcohol, drug, controlled substance, metabolite of a controlled substance, or combination content of the whole blood, blood serum, or blood plasma. This limitation does not apply to the taking of breath or urine specimens. A person authorized to withdraw blood under this division may refuse to withdraw blood under this division, if in that person s opinion, the physical welfare of the person would be endangered by the withdrawing of blood. 4511.19(D)(1)(b) (third paragraph Director of Health approved methods valid permit) The bodily substance withdrawn under division (D)(1)(b) of this section shall be analyzed in accordance with methods approved by the director of health by an individual possessing a valid permit issued by the director pursuant to section 3701.143 of the Revised Code. 4511.19(D)(1)(c) Definition of emergency medical technician and emergency medical technician paramedic (c) As used in division (D)(1)(b) of this section, emergency medical technician-intermediate and emergency medical technician-paramedic have the same meanings as in section 4765.01 of the Revised Code. 4511.19(D)(2) Test below Per Se Limits (2) In a criminal prosecution or juvenile court proceeding for a violation of division (A) of this section or for an equivalent offense, if there was at the time the bodily substance was withdrawn a concentration of less than the applicable concentration of alcohol specified in divisions (A)(1)(b), (c), (d), and (e) of this section or less than the applicable concentration of a listed controlled substance or a listed metabolite of a controlled substance specified for a violation of division (A)(1)(j) of this section, that fact may be considered with other competent evidence in determining the guilt or innocence of the defendant. This division does not limit or affect a criminal prosecution or juvenile court proceeding for a violation of division (B) of this section or for an equivalent offense that is substantially equivalent to that division. 4511.19(D)(3) Results to be provided to Defendant (3) Upon the request of the person who was tested, the results of the chemical test shall be made available to the person or the person's attorney, immediately upon the completion of the chemical test analysis. 4511.19(D)(3) (second paragraph) Right to Independent Test If the chemical test was obtained pursuant to division (D)(1)(b) of this section, the person tested may have a physician, a registered nurse, or a qualified technician, chemist, or phlebotomist of the person's own choosing administer a chemical test or tests, at the person's expense, in addition to any administered at the request of a law enforcement officer. If the person was under arrest as described in division (A)(5) of section 4511.191 of the Revised Code, the arresting officer shall advise the person at the time of the arrest that the person may have an independent chemical test taken at the person s own expense. If the person was under arrest other than described in division (A)(5) of section 4511.191 of the Revised Code, the form to be read to the person to be tested, as required under section 4511.192 of the Revised Code, shall state that the person may have an independent test performed at the person s expense. The failure or inability to obtain an additional chemical test by a person shall not preclude the admission of evidence relating to the chemical test or tests taken at the request of a law enforcement officer. 4511.19(D)(4) SFST as Evidence (statutory Predicate) 4511.19(D)(4)(a) Defines National Highway Traffic Safety Administration (4) (a) As used in divisions (D)(4)(b) and (c) of this section, "national highway traffic safety

administration" means the national highway traffic safety administration established as an administration of the United States department of transportation under 96 Stat. 2415 (1983), 49 U.S.C.A. 105. 4511.19(D)(4)(b) SFST Compliance Requirements (b) In any criminal prosecution or juvenile court proceeding for a violation of division (A) or (B) of this section, of a municipal ordinance relating to operating a vehicle while under the influence of alcohol, a drug of abuse, or alcohol and a drug of abuse, or of a municipal ordinance relating to operating a vehicle with a prohibited concentration of alcohol, a controlled substance, or a metabolite of a controlled substance in the whole blood, blood serum or plasma, breath, or urine, if a law enforcement officer has administered a field sobriety test to the operator of the vehicle involved in the violation and if it is shown by clear and convincing evidence that the officer administered the test in substantial compliance with the testing standards for any reliable, credible, and generally accepted field sobriety tests that were in effect at the time the tests were administered, including, but not limited to, any testing standards then in effect that were set by the national highway traffic safety administration, all of the following apply: (i) The officer may testify concerning the results of the field sobriety test so administered (ii) The prosecution may introduce the results of the field sobriety test so administered as evidence in any proceedings in the criminal prosecution or juvenile court proceeding. (iii) If testimony is presented or evidence is introduced under division (D)(4)(b)(i) or (ii) of this section and if the testimony or evidence is admissible under the Rules of Evidence, the court shall admit the testimony or evidence and the trier of fact shall give it whatever weight the trier of fact considers to be appropriate. 4511.19(D)(4)(c) - Court can hear other evidence not precluded by 4511.19(D)(4)(b) (c) Division (D)(4)(b) of this section does not limit or preclude a court, in its determination of whether the arrest of a person was supported by probable cause or its determination of any other matter in a criminal prosecution or juvenile court proceeding of a type described in that division, from considering evidence or testimony that is not otherwise disallowed by division (D)(4)(b) of this section. 4511.19(E)(1) Lab Report as Evidence in OVI cases (E) (1) Subject to division (E)(3) of this section, in any criminal prosecution or juvenile court proceeding for a violation of division (A)(1)(b), (c), (d), (e), (f), (g), (h), (i), or (j) or (B)(1), (2), (3), or (4) of this section or for an equivalent offense that is substantially equivalent to any of those divisions, a laboratory report from any forensic laboratory certified by the department of health that contains an analysis of the whole blood, blood serum or plasma, breath, urine, or other bodily substance tested and that contains all of the information specified in this division shall be admitted as prima-facie evidence of the information and statements that the report contains. The laboratory report shall contain all of the following: Lab Report Requirements (a) The signature, under oath, of any person who performed the analysis; (b) Any findings as to the identity and quantity of alcohol, a drug of abuse, a controlled substance, a metabolite of a controlled substance, or a combination of them that was found; (c) A copy of a notarized statement by the laboratory director or a designee of the director that contains the name of each certified analyst or test performer involved with the report, the analyst's or test performer's employment relationship with the laboratory that issued the report, and a notation that performing an analysis of the type involved is part of the analyst's or test performer's regular duties;

(d) An outline of the analyst's or test performer's education, training, and experience in performing the type of analysis involved and a certification that the laboratory satisfies appropriate quality control standards in general and, in this particular analysis, under rules of the department of health. 4511.19(E)(2) Report must be served on Defendant to be admissible (2) Notwithstanding any other provision of law regarding the admission of evidence, a report of the type described in division (E)(1) of this section is not admissible against the defendant to whom it pertains in any proceeding, other than a preliminary hearing or a grand jury proceeding, other than a preliminary hearing or a grand jury proceeding, unless the prosecutor has served a copy of the report on the defendant's attorney or, if the defendant has no attorney, on the defendant. 4511.19(E)(3) Demand for testimony to be filed within 7 days of receipt of report (3) A report of the type described in division (E)(1) of this section shall not be prima-facie evidence of the contents, identity, or amount of any substance if, within seven days after the defendant to whom the report pertains or the defendant s attorney receives a copy of the report, the defendant or the defendant s attorney demands the testimony of the person who signed the report. The judge in the case may extend the seven-day time limit in the interest of justice. 4511.19(F) Physicians protected from Suit (F) Except as otherwise provided in this division, any physician, registered nurse, emergency medical technician-intermediate, emergency medical technician-paramedic, or qualified technician, chemist, or phlebotomist who withdraws blood from a person pursuant to this section or section 4511.191 or 4511.192 of the Revised Code, and any hospital, first-aid station, or clinic at which blood is withdrawn from a person pursuant to this section or section 4511.191 or 4511.192 of the Revised Code, is immune from criminal liability and civil liability based upon a claim of assault and battery or any other claim that is not a claim of malpractice, for any act performed in withdrawing blood from the person. The immunity provided in this division also extends to an emergency medical service organization that employs an emergency medical technician-intermediate or emergency medical technician-paramedic who withdraws blood under this section. The immunity provided in this division is not available to a person who withdraws blood if the person engages in willful or wanton misconduct. As used in this division, emergency medical technician-intermediate and emergency medical technician-paramedic have the same meanings as in section 4765.01 of the Revised Code. 4511.19(G) Sentencing jail and prison time fines suspensions (suspension class) (G)(1) Whoever violates any provision of divisions (A)(1)(a) to (i) or (A)(2) of this section is guilty of operating a vehicle under the influence of alcohol, a drug of abuse, or a combination of them. Whoever violates division (A)(1)(j) of this section is guilty of operating a vehicle while under the influence of a listed controlled substance or a listed metabolite of a controlled substance. The court shall sentence the offender for either offense under Chapter 2929. of the Revised Code, except as otherwise authorized or required by divisions (G)(1)(a) to (e) of this section: (a) Except as otherwise provided in division (G)(1)(b), (c), (d), or (e) of this section, the offender is guilty of a misdemeanor of the first degree, and the court shall sentence the offender to all of the following: 4511.19(G)(1)(a)(i) First Offense Low Tier jail (i) If the sentence is being imposed for a violation of division (A)(1)(a), (b), (c), (d), (e), or (j) of this section, a mandatory jail term of three consecutive days. As used in this division, three

consecutive days means seventy-two consecutive hours. The court may sentence an offender to both an intervention program and a jail term. The court may impose a jail term in addition to the three-day mandatory jail term or intervention program. However, in no case shall the cumulative jail term imposed for the offense exceed six months. Intervention Program in lieu of jail The court may suspend the execution of the three-day jail term under this division if the court, in lieu of that suspended term, places the offender under a community control sanction pursuant to section 2929.25 of the Revised Code and requires the offender to attend, for three consecutive days, a drivers' intervention program certified under section 3793.10 of the Revised Code. The court also may suspend the execution of any part of the three-day jail term under this division if it places the offender under a community control sanction pursuant to section 2929.25 of the Revised Code for part of the three days, requires the offender to attend for the suspended part of the term a drivers' intervention program so certified, and sentences the offender to a jail term equal to the remainder of the three consecutive days that the offender does not spend attending the program. The court may require the offender, as a condition of community control and in addition to the required attendance at a drivers' intervention program, to attend and satisfactorily complete any treatment or education programs that comply with the minimum standards adopted pursuant to Chapter 3793. of the Revised Code by the director of alcohol and drug addiction services that the operators of the drivers' intervention program determine that the offender should attend and to report periodically to the court on the offender's progress in the programs. The court also may impose on the offender any other conditions of community control that it considers necessary. 4511.19(G)(1)(a)(ii) First Offense High Tier or Criminal Refusal Jail (ii) If the sentence is being imposed for a violation of division (A)(1)(f), (g), (h), or (i) or division (A)(2) of this section, except as otherwise provided in this division, a mandatory jail term of at least three consecutive days and a requirement that the offender attend, for three consecutive days, a drivers' intervention program that is certified pursuant to section 3793.10 of the Revised Code. As used in this division, three consecutive days means seventy-two consecutive hours. If the court determines that the offender is not conducive to treatment in a drivers' intervention program, if the offender refuses to attend a drivers' intervention program, or if the jail at which the offender is to serve the jail term imposed can provide a driver's intervention program, the court shall sentence the offender to a mandatory jail term of at least six consecutive days. The court may require the offender, under a community control sanction pursuant to section 2929.25 of the Revised Code, to attend and satisfactorily complete any treatment or education programs that comply with the minimum standards adopted pursuant to Chapter 3793. of the Revised Code by the director of alcohol and drug addiction services, in addition to the required attendance at drivers' intervention program, that the operators of the drivers' intervention program determine that the offender should attend and to report periodically to the court on the offender's progress in the programs. The court also may impose any other conditions of community control on the offender that it considers necessary. 4511.19(G)(1)(a)(iii) - First Offense fines (iii) In all cases, a fine of not less than three hundred seventy-five and not more than one thousand seventy-five dollars; 4511.19(G)(1)(a)(iv) - First Offense License Suspensions (iv) In all cases, a class five license suspension of the offender's driver's or commercial driver's

license or permit or nonresident operating privilege from the range specified in division (A)(5) of section 4510.02 of the Revised Code. The court may grant limited driving privileges relative to the suspension under sections 4510.021 and 4510.13 of the Revised Code. 4511.19(G)(1)(b) Second Offense Penalties (b) Except as otherwise provided in division (G)(1)(e) of this section, an offender who, within six years of the offense, previously has been convicted of or pleaded guilty to one violation of division (A) or (B) of this section or one other equivalent offense is guilty of a misdemeanor of the first degree. The court shall sentence the offender to all of the following: 4511.19(G)(1)(b)(i) - Second Offense Low Tier Jail etc (i) If the sentence is being imposed for a violation of division (A)(1)(a), (b), (c), (d), (e), or (j) of this section, a mandatory jail term of ten consecutive days. The court shall impose the ten-day mandatory jail term under this division unless, subject to division (G)(3) of this section, it instead imposes a sentence under that division consisting of both a jail term and a term of house arrest with electronic monitoring, with continuous alcohol monitoring, or with both electronic monitoring and continuous alcohol monitoring. The court may impose a jail term in addition to the ten-day mandatory jail term. The cumulative jail term imposed for the offense shall not exceed six months. Additional house arrest electronic monitoring In addition to the jail term or the term of house arrest with electronic monitoring or continuous alcohol monitoring or both types of monitoring and jail term, the court shall require the offender to be assessed by an alcohol and drug treatment program that is authorized by section 3793.02 of the Revised Code, subject to division (I) of this section, and shall order the offender to follow the treatment recommendations of the program. The purpose of the assessment is to determine the degree of the offender s alcohol usage and to determine whether or not treatment is warranted. Upon the request of the court, the program shall submit the results of the assessment to the court, including all treatment recommendations and clinical diagnoses related to alcohol use. 4511.19(G)(1)(b)(ii) - Second Offense High Tier or Criminal Refusal- jail etc (ii) If the sentence is being imposed for a violation of division (A)(1)(f), (g), (h), or (i) or division (A)(2) of this section, except as otherwise provided in this division, a mandatory jail term of twenty consecutive days. The court shall impose the twenty-day mandatory jail term under this division unless, subject to division (G)(3) of this section, it instead imposes a sentence under that division consisting of both a jail term and a term of house arrest with electronic monitoring, with continuous alcohol monitoring, or with both electronic monitoring and continuous alcohol monitoring. The court may impose a jail term in addition to the twenty-day mandatory jail term. The cumulative jail term imposed for the offense shall not exceed six months. Additional house arrest electronic monitoring In addition to the jail term or the term of house arrest with electronic monitoring or continuous alcohol monitoring or both types of monitoring and jail term, the court shall require the offender to be assessed by an alcohol and drug treatment program that is authorized by section 3793.02 of the Revised Code, subject to division (I) of this section, and shall order the offender to follow the treatment recommendations of the program. The purpose of the assessment is to determine the degree of the offender s alcohol usage and to determine whether or not treatment is warranted. Upon the request of the court, the program shall submit the results of the assessment to the court, including all treatment recommendations and clinical diagnoses related to alcohol use. 4511.19(G)(1)(b)(iii) - Second Offense Fines (iii) In all cases, notwithstanding the fines set forth in Chapter 2929. of the Revised Code, a fine

of not less than five hundred twenty-five and not more than one thousand six hundred twenty-five dollars; 4511.19(G)(1)(b)(iv) - Second Offense License Suspensions (iv) In all cases, a class four license suspension of the offender's driver's license, commercial driver's license, temporary instruction permit, probationary license, or nonresident operating privilege from the range specified in division (A)(4) of section 4510.02 of the Revised Code. The court may grant limited driving privileges relative to the suspension under sections 4510.021 and 4510.13 of the Revised Code. 4511.19(G)(1)(b)(v) - Second Offense Vehicle Sanctions (immobilization) (v) In all cases, if the vehicle is registered in the offender's name, immobilization of the vehicle involved in the offense for ninety days in accordance with section 4503.233 of the Revised Code and impoundment of the license plates of that vehicle for ninety days. 4511.19(G)(1)(c) - Third Offense Penalties (c) Except as otherwise provided in division (G)(1)(e) of this section, an offender who, within six years of the offense, previously has been convicted of or pleaded guilty to two violations of division (A) or (B) of this section or other equivalent offenses is guilty of a misdemeanor. The court shall sentence the offender to all of the following: 4511.19(G)(1)(c)(i) Third Offense Low Tier Jail (i) If the sentence is being imposed for a violation of division (A)(1)(a), (b), (c), (d), (e), or (j) of this section, a mandatory jail term of thirty consecutive days. The court shall impose the thirtyday mandatory jail term under this division unless, subject to division (G)(3) of this section, it instead imposes a sentence under that division consisting of both a jail term and a term of house arrest with electronic monitoring, with continuous alcohol monitoring, or with both electronic monitoring and continuous alcohol monitoring. The court may impose a jail term in addition to the thirty-day mandatory jail term. Notwithstanding the jail terms set forth in sections 2929.21 to 2929.28 of the Revised Code, the additional jail term shall not exceed one year, and the cumulative jail term imposed for the offense shall not exceed one year. 4511.19(G)(1)(c)(ii) - Third Offense High Tier or Criminal Refusal Jail (ii) If the sentence is being imposed for a violation of division (A)(1)(f), (g), (h), or (i) or division (A)(2) of this section, a mandatory jail term of sixty consecutive days. The court shall impose the sixty-day mandatory jail term under this division unless, subject to division (G)(3) of this section, it instead imposes a sentence under that division consisting of both a jail term and a term of house arrest with electronic monitoring, with continuous alcohol monitoring, or with both electronic monitoring and continuous alcohol monitoring. The court may impose a jail term in addition to the sixty-day mandatory jail term. Notwithstanding the jail terms set forth in sections 2929.21 to 2929.28 of the Revised Code, the additional jail term shall not exceed one year, and the cumulative jail term imposed for the offense shall not exceed one year. 4511.19(G)(1)(c)(iii) - Third Offense Fines (iii) In all cases, notwithstanding the fines set forth in Chapter 2929. of the Revised Code, a fine of not less than eight hundred fifty dollars and not more than two thousand seven hundred fifty dollars; 4511.19(G)(1)(c)(iv) - Third Offense License Suspensions (iv) In all cases, a class three license suspension of the offender's driver's license, commercial driver's license, temporary instruction permit, probationary license, or nonresident operating privilege from the range specified in division (A)(3) of section 4510.02 of the Revised Code. The court may grant limited driving privileges relative to the suspension under sections 4510.021 and

4510.13 of the Revised Code. 4511.19(G)(1)(c)(v) - Third Offense Vehicle Sanctions (criminal forfeiture) (v) In all cases, if the vehicle is registered in the offender's name, criminal forfeiture of the vehicle involved in the offense in accordance with section 4503.234 of the Revised Code. Division (G)(6) of this section applies regarding any vehicle that is subject to an order of criminal forfeiture under this division. 4511.19(G)(1)(c)(vi) - Third Offense Mandatory Alcohol Drug Program (vi) In all cases, the court shall order the offender to participate in an alcohol and drug addiction program authorized by section 3793.02 of the Revised Code, subject to division (I) of this section, and shall order the offender to follow the treatment recommendations of the program. The operator of the program shall determine and assess the degree of the offender s alcohol dependency and shall make recommendations for treatment. Upon the request of the court, the program shall submit the results of the assessment to the court, including all treatment recommendations and clinical diagnoses related to alcohol use. 4511.19(G)(1)(d) - Multiple Repeat Offender (MRO) Felony Four 3 or 4 Priors within six years or 5 priors within 20 years = Felony Four (d) Except as otherwise provided in division (G)(1)(e) of this section, an offender who, within six years of the offense, previously has been convicted of or pleaded guilty to three or four violations of division (A) or (B) of this section or other equivalent offenses or an offender who, within twenty years of the offense, previously has been convicted of or pleaded guilty to five or more violations of that nature is guilty of a felony of the fourth degree. The court shall sentence the offender to all of the following: 4511.19(G)(1)(d)(i) - (MRO) Felony Four Low Tier or Impaired - Jail (3 4 priors w/in 6 years or 5 priors within 20 years) Low Tier or Impaired (i) If the sentence is being imposed for a violation of division (A)(1)(a), (b), (c), (d), (e), or (j) of this section, a mandatory prison term of one, two, three, four, or five years as required by and in accordance with division (G)(2) of section 2929.13 of the Revised Code if the offender also is convicted of or also pleads guilty to a specification of the type described in section 2941.1413 of the Revised Code or, in the discretion of the court, either a mandatory term of local incarceration of sixty consecutive days in accordance with division (G)(1) of section 2929.13 of the Revised Code or a mandatory prison term of sixty consecutive days in accordance with division (G)(2) of that section if the offender is not convicted of and does not plead guilty to a specification of that type. If the court imposes a mandatory term of local incarceration, it may impose a jail term in addition to the sixty-day mandatory term, the cumulative total of the mandatory term and the jail term for the offense shall not exceed one year, and, except as provided in division (A)(1) of section 2929.13 of the Revised Code, no prison term is authorized for the offense. If the court imposes a mandatory prison term, notwithstanding division (A)(4) of section 2929.14 of the Revised Code, it also may sentence the offender to a definite prison term that shall be not less than six months and not more than thirty months and the prison terms shall be imposed as described in division (G)(2) of section 2929.13 of the Revised Code. If the court imposes a mandatory prison term or mandatory prison term and additional prison term, in addition to the term or terms so imposed, the court also may sentence the offender to a community control sanction for the offense, but the offender shall serve all of the prison terms so imposed prior to serving the community control sanction. 4511.19(G)(1)(d)(ii)

(MRO) Felony Four High Tier or Criminal Refusal - Jail (3 4 priors w/in 6 years or 5 priors within 20 years) Low Tier or Impaired (with and without 5 in 20 Spec) (ii) If the sentence is being imposed for a violation of division (A)(1)(f), (g), (h), or (i) or division (A)(2) of this section, a mandatory prison term of one, two, three, four, or five years as required by and in accordance with division (G)(2) of section 2929.13 of the Revised Code if the offender also is convicted of or also pleads guilty to a specification of the type described in section 2941.1413 of the Revised Code or, in the discretion of the court, either a mandatory term of local incarceration of one hundred twenty consecutive days in accordance with division (G)(1) of section 2929.13 of the Revised Code or a mandatory prison term of one hundred twenty consecutive days in accordance with division (G)(2) of that section if the offender is not convicted of and does not plead guilty to a specification of that type. If the court imposes a mandatory term of local incarceration, it may impose a jail term in addition to the one hundred twenty-day mandatory term, the cumulative total of the mandatory term and the jail term for the offense shall not exceed one year, and, except as provided in division (A)(1) of section 2929.13 of the Revised Code, no prison term is authorized for the offense. If the court imposes a mandatory prison term, notwithstanding division (A)(4) of section 2929.14 of the Revised Code, it also may sentence the offender to a definite prison term that shall be not less than six months and not more than thirty months and the prison terms shall be imposed as described in division (G)(2) of section 2929.13 of the Revised Code. If the court imposes a mandatory prison term or mandatory prison term and additional prison term, in addition to the term or terms so imposed, the court also may sentence the offender to a community control sanction for the offense, but the offender shall serve all of the prison terms so imposed prior to serving the community control sanction. 4511.19(G)(1)(d)(iii) - (MRO) Felony Four Fines (iii) In all cases, notwithstanding section 2929.18 of the Revised Code, a fine of not less than one thousand three hundred fifty nor more than ten thousand five hundred dollars; 4511.19(G)(1)(d)(iv) - (MRO) Felony Four License Suspensions (iv) In all cases, a class two license suspension of the offender's driver's license, commercial driver's license, temporary instruction permit, probationary license, or nonresident operating privilege from the range specified in division (A)(2) of section 4510.02 of the Revised Code. The court may grant limited driving privileges relative to the suspension under sections 4510.021 and 4510.13 of the Revised Code. 4511.19(G)(1)(d)(v) - (MRO) Felony Four Vehicle Sanctions (v) In all cases, if the vehicle is registered in the offender's name, criminal forfeiture of the vehicle involved in the offense in accordance with section 4503.234 of the Revised Code. Division (G)(6) of this section applies regarding any vehicle that is subject to an order of criminal forfeiture under this division. 4511.19(G)(1)(d)(vi) - (MRO) Felony Four Mandatory Alcohol / Drug Program (vi) In all cases, the court shall order the offender to participate in an alcohol and drug addiction program authorized by section 3793.02 of the Revised Code, subject to division (I) of this section, and shall order the offender to follow the treatment recommendations of the program. The operator of the program shall determine and assess the degree of the offender s alcohol

dependency and shall make recommendations for treatment. Upon the request of the court, the program shall submit the results of the assessment to the court, including all treatment recommendations and clinical diagnoses related to alcohol use. 4511.19(G)(1)(d)(vii) - (MRO) Felony Four Mandatory (vii) In all cases, if the court sentences the offender to a mandatory term of local incarceration, in addition to the mandatory term, the court, pursuant to section 2929.17 of the Revised Code, may impose a term of house arrest with electronic monitoring. The term shall not commence until after the offender has served the mandatory term of local incarceration. 4511.19(G)(1)(e) (Repeat Felony Offender) Felony Three Penalties (e) An offender who previously has been convicted of or pleaded guilty to a violation of division (A) of this section that was a felony, regardless of when the violation and the conviction or guilty plea occurred, is guilty of a felony of the third degree. The court shall sentence the offender to all of the following: 4511.19(G)(1)(e)(i) (RFO) Felony Three - Low Tier or Impaired Jail (with and without 5 or more Spec) (i) If the offender is being sentenced for a violation of division (A)(1)(a), (b), (c), (d), (e), or (j) of this section, a mandatory prison term of one, two, three, four, or five years as required by and in accordance with division (G)(2) of section 2929.13 of the Revised Code if the offender also is convicted of or also pleads guilty to a specification of the type described in section 2941.1413 of the Revised Code or a mandatory prison term of sixty consecutive days in accordance with division (G)(2) of section 2929.13 of the Revised Code if the offender is not convicted of and does not plead guilty to a specification of that type. The court may impose a prison term in addition to the mandatory prison term. The cumulative total of a sixty-day mandatory prison term and the additional prison term for the offense shall not exceed five years. In addition to the mandatory prison term or mandatory prison term and additional prison term the court imposes, the court also may sentence the offender to a community control sanction for the offense, but the offender shall serve all of the prison terms so imposed prior to serving the community control sanction. 4511.19(G)(1)(e)(ii) (RFO) Felony Three High Tier or Criminal Refusal Jail (with and without 5 or more Spec) (ii) If the sentence is being imposed for a violation of division (A)(1)(f), (g), (h), or (i) or division (A)(2) of this section, a mandatory prison term of one, two, three, four, or five years as required by and in accordance with division (G)(2) of section 2929.13 of the Revised Code if the offender also is convicted of or also pleads guilty to a specification of the type described in section 2941.1413 of the Revised Code or a mandatory prison term of one hundred twenty consecutive days in accordance with division (G)(2) of section 2929.13 of the Revised Code if the offender is not convicted of and does not plead guilty to a specification of that type. The court may impose a prison term in addition to the mandatory prison term. The cumulative total of a one hundred twenty-day mandatory prison term and the additional prison term for the offense shall not exceed five years. In addition to the mandatory prison term or mandatory prison term and additional prison term the court imposes, the court also may sentence the offender to a community control sanction for the offense, but the offender shall serve all of the prison terms so imposed prior to serving the community control sanction. 4511.19(G)(1)(e)(iii) (RFO) Felony Three Fines (iii) In all cases, notwithstanding section 2929.18 of the Revised Code, a fine of not less than one thousand three hundred fifty nor more than ten thousand five hundred dollars;

4511.19(G)(1)(e)(iv) (RFO) Felony Three License Suspensions (iv) In all cases, a class two license suspension of the offender's driver's license, commercial driver's license, temporary instruction permit, probationary license, or nonresident operating privilege from the range specified in division (A)(2) of section 4510.02 of the Revised Code. The court may grant limited driving privileges relative to the suspension under sections 4510.021and 4510.13 of the Revised Code. 4511.19(G)(1)(e)(v) (RFO) Felony Three Vehicle Sanctions (criminal forfeiture) (v) In all cases, if the vehicle is registered in the offender's name, criminal forfeiture of the vehicle involved in the offense in accordance with section 4503.234 of the Revised Code. Division (G)(6) of this section applies regarding any vehicle that is subject to an order of criminal forfeiture under this division. 4511.19(G)(1)(e)(vi) (RFO) Felony Three Mandatory Alcohol / Drug Program (vi) In all cases, the court shall order the offender to participate in an alcohol and drug addiction program authorized by section 3793.02 of the Revised Code, subject to division (I) of this section, and shall order the offender to follow the treatment recommendations of the program. The operator of the program shall determine and assess the degree of the offender s alcohol dependency and shall make recommendations for treatment. Upon the request of the court, the program shall submit the results of the assessment to the court, including all treatment recommendations and clinical diagnoses related to alcohol use. 4511.19 (G)(2) OVI Reinstatement Fees (2) An offender who is convicted of or pleads guilty to a violation of division (A) of this section and who subsequently seeks reinstatement of the driver's or occupational driver's license or permit or nonresident operating privilege suspended under this section as a result of the conviction or guilty plea shall pay a reinstatement fee as provided in division (F)(2) of section 4511.191 of the Revised Code. 4511.19 (G)(3) Unavailability of Jail Space - Sentencing Option for 2 nd & 3 rd Offenses (3) If an offender is sentenced to a jail term under division (G)(1)(b)(i) or (ii) or (G)(1)(c)(i) or (ii) of this section and if, within sixty days of sentencing of the offender, the court issues a written finding on the record that, due to the unavailability of space at the jail where the offender is required to serve the term, the offender will not be able to begin serving that term within the sixty-day period following the date of sentencing, the court may impose an alternative sentence under this division that includes a term of house arrest with electronic monitoring, with continuous alcohol monitoring, or with both electronic monitoring and continuous alcohol monitoring. As an alternative to a mandatory jail term of ten consecutive days required by division (G)(1)(b)(i) of this section, the court, under this division, may sentence the offender to five consecutive days in jail and not less than eighteen consecutive days of house arrest with electronic monitoring, with continuous alcohol monitoring, or with both electronic monitoring and continuous alcohol monitoring. The cumulative total of the five consecutive days in jail and the period of house arrest with electronic monitoring, continuous alcohol monitoring, or both types of monitoring shall not exceed six months. The five consecutive days in jail do not have to be served prior to or consecutively to the period of house arrest. As an alternative to the mandatory jail term of twenty consecutive days required by division (G)(1)(b)(ii) of this section, the court, under this division, may sentence the offender to ten consecutive days in jail and not less than thirty-six consecutive days of house arrest with electronic monitoring, with continuous alcohol monitoring, or with both electronic monitoring

and continuous alcohol monitoring. The cumulative total of the ten consecutive days in jail and the period of house arrest with electronic monitoring, continuous alcohol monitoring, or both types of monitoring shall not exceed six months. The ten consecutive days in jail do not have to be served prior to or consecutively to the period of house arrest. As an alternative to a mandatory jail term of thirty consecutive days required by division (G)(1)(c)(i) of this section, the court, under this division, may sentence the offender to fifteen consecutive days in jail and not less than fifty-five consecutive days of house arrest with electronic monitoring, with continuous alcohol monitoring, or with both electronic monitoring and continuous alcohol monitoring. The cumulative total of the fifteen consecutive days in jail and the period of house arrest with electronic monitoring, continuous alcohol monitoring, or both types of monitoring shall not exceed one year. The fifteen consecutive days in jail do not have to be served prior to or consecutively to the period of house arrest. As an alternative to the mandatory jail term of sixty consecutive days required by division (G)(1)(c)(ii) of this section, the court, under this division, may sentence the offender to thirty consecutive days in jail and not less than one hundred ten consecutive days of house arrest with electronic monitoring, with continuous alcohol monitoring, or with both electronic monitoring and continuous alcohol monitoring. The cumulative total of the thirty consecutive days in jail and the period of house arrest with electronic monitoring, continuous alcohol monitoring, or both types of monitoring shall not exceed one year. The thirty consecutive days in jail do not have to be served prior to or consecutively to the period of house arrest. 4511.19 (G)(4) Distinctive Plates and Limited Privileges (4) If an offender's driver's or occupational driver's license or permit or nonresident operating privilege is suspended under division (G) of this section and if section 4510.13 of the Revised Code permits the court to grant limited driving privileges, the court may grant the limited driving privileges in accordance with that section. If division (A)(7) of that section requires that the court impose as a condition of the privileges that the offender must display on the vehicle that is driven subject to the privileges restricted license plates that are issued under section 4503.231 of the Revised Code, except as provided in division (B) of that section, the court shall impose that condition as one of the conditions of the limited driving privileges granted to the offender, except as provided in division (B) of section 4503.231 of the Revised Code. 4511.19 (G)(5) Distribution of Fines (follow the money) (5) Fines imposed under this section for a violation of division (A) of this section shall be distributed as follows: (a) Twenty-five dollars of the fine imposed under division (G)(1)(a)(iii), thirty-five dollars of the fine imposed under division (G)(1)(b)(iii), one hundred twenty-three dollars of the fine imposed under division (G)(1)(c)(iii), and two hundred ten dollars of the fine imposed under division (G)(1)(d)(iii) or (e)(iii) of this section shall be paid to an enforcement and education fund established by the legislative authority of the law enforcement agency in this state that primarily was responsible for the arrest of the offender, as determined by the court that imposes the fine. The agency shall use this share to pay only those costs it incurs in enforcing this section or a municipal OVI ordinance and in informing the public of the laws governing the operation of a vehicle while under the influence of alcohol, the dangers of the operation of a vehicle under the influence of alcohol, and other information relating to the operation of a vehicle under the influence of alcohol and the consumption of alcoholic beverages. (b) Fifty dollars of the fine imposed under division (G)(1)(a)(iii) of this section shall be paid to the political subdivision that pays the cost of housing the offender during the offender s term of

incarceration. If the offender is being sentenced for a violation of division (A)(1)(a), (b), (c), (d), (e), or (j) of this section and was confined as a result of the offense prior to being sentenced for the offense but is not sentenced to a term of incarceration, the fifty dollars shall be paid to the political subdivision that paid the cost of housing the offender during that period of confinement. The political subdivision shall use the share under this division to pay or reimburse incarceration or treatment costs it incurs in housing or providing drug and alcohol treatment to persons who violate this section or a municipal OVI ordinance, costs of any immobilizing or disabling device used on the offender s vehicle, and costs of electronic house arrest equipment needed for persons who violate this section. (c) Twenty-five dollars of the fine imposed under division (G)(1)(a)(iii) and fifty dollars of the fine imposed under division (G)(1)(b)(iii) of this section shall be deposited into the county or municipal indigent drivers' alcohol treatment fund under the control of that court, as created by the county or municipal corporation under division (F) of section 4511.191 of the Revised Code. (d) One hundred fifteen dollars of the fine imposed under division (G)(1)(b)(iii), two hundred seventy-seven dollars of the fine imposed under division (G)(1)(c)(iii), and four hundred forty dollars of the fine imposed under division (G)(1)(d)(iii) or (e)(iii) of this section shall be paid to the political subdivision that pays the cost of housing the offender during the offender's term of incarceration. The political subdivision shall use this share to pay or reimburse incarceration or treatment costs it incurs in housing or providing drug and alcohol treatment to persons who violate this section or a municipal OVI ordinance, costs for any immobilizing or disabling device used on the offender's vehicle, and costs of electronic house arrest equipment needed for persons who violate this section. (e) Fifty dollars of the fine imposed under divisions (G)(1)(a)(iii), (G)(1)(b)(iii), (G)(1)(c)(iii), (G)(1)(d)(iii), and (G)(1)(e)(iii) of this section shall be deposited into the special projects fund of the court in which the offender was convicted and that is established under division (E)(1) of section 2303.201, division (B)(1) of section 1901.26, or division (B)(1) of section 1907.24 of the Revised Code, to be used exclusively to cover the cost of immobilizing or disabling devices, including certified ignition interlock devices, and remote alcohol monitoring devices for indigent offenders who are required by a judge to use either of these devices. If the court in which the offender was convicted does not have a special projects fund that is established under division (E)(1) of section 2303.201, division (B)(1) of section 1901.26, or division (B)(1) of section 1907.24 of the Revised Code, the fifty dollars shall be deposited into the indigent drivers interlock and alcohol monitoring fund under division (I) of section 4511.191 of the Revised Code. (f) Seventy-five dollars of the fine imposed under division (G)(1)(a)(iii), one hundred twenty-five dollars of the fine imposed under division (G)(1)(b)(iii), two hundred fifty dollars of the fine imposed under division (G)(1)(c)(iii), and five hundred dollars of the fine imposed under division (G)(1)(d)(iii) or (e)(iii) of this section shall be transmitted to the treasurer of state for deposit into the indigent defense support fund established under section 120.08 of the Revised Code. (g) The balance of the fine imposed under division (G)(1)(a)(iii), (b)(iii), (c)(iii), (d)(iii), or (e)(iii) of this section shall be disbursed as otherwise provided by law. 4511.19 (G)(6) Criminal Forfeiture avoided by transfer Added Fine = vehicle value (6) If title to a motor vehicle that is subject to an order of criminal forfeiture under division (G)(1)(c), (d), or (e) of this section is assigned or transferred and division (B)(2) or (3) of section 4503.234 of the Revised Code applies, in addition to or independent of any other penalty

established by law, the court may fine the offender the value of the vehicle as determined by publications of the national auto dealers association. The proceeds of any fine so imposed shall be distributed in accordance with division (C)(2) of that section. 4511.19 (G)(7) Electronic Monitoring and mandatory Prison Term (definitions) (7) As used in division (G) of this section, "electronic monitoring," "mandatory prison term," and "mandatory term of local incarceration" have the same meanings as in section 2929.01 of the Revised Code. 4511.19 (H) OVUAC Penalties (H) Whoever violates division (B) of this section is guilty of operating a vehicle after underage alcohol consumption and shall be punished as follows: 4511.19 (H)(1) OVUAC first offender (1) Except as otherwise provided in division (H)(2) of this section, the offender is guilty of a misdemeanor of the fourth degree. In addition to any other sanction imposed for the offense, the court shall impose a class six suspension of the offender's driver's license, commercial driver's license, temporary instruction permit, probationary license, or nonresident operating privilege from the range specified in division (A)(6) of section 4510.02 of the Revised Code. 4511.19 (H)(1) OVUAC repeat offenses within 1 year (2) If, within one year of the offense, the offender previously has been convicted of or pleaded guilty to one or more violations of division (A) or (B) of this section or other equivalent offense, the offender is guilty of a misdemeanor of the third degree. In addition to any other sanction imposed for the offense, the court shall impose a class four suspension of the offender's driver's license, commercial driver's license, temporary instruction permit, probationary license, or nonresident operating privilege from the range specified in division (A)(4) of section 4510.02 of the Revised Code. 4511.19(H)(3) OVUAC w/ 5 in 20 spec (3) If the offender also is convicted of or also pleads guilty to a specification of the type described in section 2941.1416 of the Revised Code and if the court imposes a jail term for the violation of division (B) of this section, the court shall impose upon the offender an additional definite jail term pursuant to division (E) of section 2929.24 of the Revised Code. 4511.19(I) Treatment Programs must comply with ORC 3793 (I) (1) No court shall sentence an offender to an alcohol treatment program under this section unless the treatment program complies with the minimum standards for alcohol treatment programs adopted under Chapter 3793. of the Revised Code by the director of alcohol and drug addiction services. 4511.19(I)(2) Paying for DIP or Alcohol Program (2) An offender who stays in a drivers' intervention program or in an alcohol treatment program under an order issued under this section shall pay the cost of the stay in the program. However, if the court determines that an offender who stays in an alcohol treatment program under an order issued under this section is unable to pay the cost of the stay in the program, the court may order that the cost be paid from the court's indigent drivers' alcohol treatment fund. 4511.19(J) Criminal appeal does not automatically stay license suspension (J) If a person whose driver's or commercial driver's license or permit or nonresident operating privilege is suspended under this section files an appeal regarding any aspect of the person's trial or sentence, the appeal itself does not stay the operation of the suspension. 4511.19(K) Controlled substances with a prescription or in accordance with health professional s

directions (K) Division (A)(1)(j) of this section does not apply to a person who operates a vehicle, streetcar, or trackless trolley while the person has a concentration of a listed controlled substance or a listed metabolite of a controlled substance in the person s whole blood, blood serum or plasma, or urine that equals or exceeds the amount specified in that division, if both of the following apply: (1) The person obtained the controlled substance pursuant to a prescription issued by a licensed health professional authorized to prescribe drugs. (2) The person injected, ingested, or inhaled the controlled substance in accordance with the health professional s directions. 4511.19(L) Controlled substances-application of 2923.16 (L) The prohibited concentrations of a controlled substance or a metabolite of a controlled substance listed in division (A)(1)(j) of this section also apply in a prosecution of a violation of division (D) of section 2923.16 of the Revised Code in the same manner as if the offender is being prosecuted for a prohibited concentration of alcohol. 4511.19(M) Terms used herein - 4510.01 and 4501.01 apply 4501.01 rules in conflicts (M) All terms defined in section 4510.01 of the Revised Code apply to this section. If the meaning of a term defined in section 4510.01 of the Revised Code conflicts with the meaning of the same term as defined in section 4501.01 or 4511.01 of the Revised Code, the term as defined in section 4510.01 of the Revised Code applies to this section. 4511.19(N)(1) Traffic Rules and Felonies (N) (1) The Ohio Traffic Rules in effect on January 1, 2004, as adopted by the supreme court under authority of section 2937.46 of the Revised Code, do not apply to felony violations of this section. Subject to division (L)(2) of this section, the Rules of Criminal Procedure apply to felony violations of this section. (2) If, on or after January 1, 2004, the supreme court modifies the Ohio Traffic Rules to provide procedures to govern felony violations of this section, the modified rules shall apply to felony violations of this section. HISTORY: Amended by 128th General Assembly File No. 50, SB 58, 1, eff. 9/17/2010. Effective Date: 01-01-2004; 09-23-2004; 08-17-2006; 04-04-2007; 2008 SB209 03-26-2008; 2008 SB17 09-30-2008; 2008 HB215 04-07-2009This section is set out twice. See also 4511.19, as amended by 129th General Assembly File No. 25, HB 5, 1, eff. 9/23/2011.

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Laws re CDL & OVI & ALS 4506.16 (D) The registrar of motor vehicles shall disqualify any holder of a commercial driver s license, or any operator of a commercial motor vehicle for which a commercial driver s license is required, from operating a commercial motor vehicle as follows: (1) Upon a first conviction for a violation of any provision of divisions (A)(2) to (12) of section 4506.15 of the Revised Code or a similar law of another state or a foreign jurisdiction, or upon a first suspension imposed under section 4511.191 of the Revised Code or a similar law of another state or foreign jurisdiction, one year; (2) Upon a second conviction for a violation of any provision of divisions (A)(2) to (12) of section 4506.15 of the Revised Code or a similar law of another state or a foreign jurisdiction, or upon a second suspension imposed under section 4511.191 of the Revised Code or a similar law of another state or foreign jurisdiction, or any combination of such violations arising from two or more separate incidents, the person shall be disqualified for life or for any other period of time as determined by the United States secretary of transportation and designated by the director of public safety by rule; 4506.15 Prohibited acts (A) No person who holds a commercial driver s license or operates a motor vehicle for which a commercial driver s license is required shall do any of the following: (6) Drive a motor vehicle in violation of section 4511.19 of the Revised Code or a municipal OVI ordinance as defined in section 4511.181 of the Revised Code; Full Statutes 4506.16 Violations - disqualification of driver or placement outof-service. (A) Any person who is found to have been convicted of a violation of an out-ofservice order shall be disqualified by the registrar of motor vehicles as follows: (1) If the person has not been convicted previously of a violation of an out-of-service order, the period of disqualification is one hundred eighty days.

(2) If, during any ten-year period, the driver is convicted of a second violation of an out-of-service order in an incident separate from the incident that resulted in the first violation, the period of disqualification is two years. (3) If, during any ten-year period, the driver is convicted of a third or subsequent violation of an out-of-service order in an incident separate from the incidents that resulted in the previous violations during that ten-year period, the period of disqualification is three years. (B)(1) A driver is disqualified for one hundred eighty days if the driver is convicted of a first violation of an out-of-service order while transporting hazardous materials required to be placarded under the Hazardous Materials Transportation Act, 88 Stat. 2156 (1975), 49 U.S.C.A. 1801, as amended, or while operating a motor vehicle designed to transport sixteen or more passengers, including the driver. (2) A driver is disqualified for a period of three years if, during any ten-year period, the driver is convicted of a second or subsequent violation, in an incident separate from the incident that resulted in a previous violation during that ten-year period, of an out-of-service order while transporting hazardous materials required to be placarded under that act, or while operating a motor vehicle designed to transport sixteen or more passengers, including the driver. (C) Whoever violates division (A)(1) of section 4506.15 of the Revised Code or a similar law of another state or a foreign jurisdiction, immediately shall be placed outof-service for twenty-four hours, in addition to any disqualification required by this section and any other penalty imposed by the Revised Code. (D) The registrar of motor vehicles shall disqualify any holder of a commercial driver s license, or any operator of a commercial motor vehicle for which a commercial driver s license is required, from operating a commercial motor vehicle as follows: (1) Upon a first conviction for a violation of any provision of divisions (A)(2) to (12) of section 4506.15 of the Revised Code or a similar law of another state or a foreign jurisdiction, or upon a first suspension imposed under section 4511.191 of the Revised Code or a similar law of another state or foreign jurisdiction, one year; (2) Upon a second conviction for a violation of any provision of divisions (A)(2) to (12) of section 4506.15 of the Revised Code or a similar law of another state or a foreign jurisdiction, or upon a second suspension imposed under section 4511.191 of the Revised Code or a similar law of another state or foreign jurisdiction, or any combination of such violations arising from two or more separate incidents, the person shall be disqualified for life or for any other period of time as determined by the United States secretary of transportation and designated by the director of public safety by rule;

(3) Upon a first conviction for any of the following violations while transporting hazardous materials, three years: (a) Divisions (A)(2) to (12) of section 4506.15 of the Revised Code ; (b) A similar law of another state or a foreign jurisdiction. (4) Upon conviction of a violation of division (A)(13) of section 4506.15 of the Revised Code or a similar law of another state or a foreign jurisdiction, the person shall be disqualified for life; (5)(a) Upon conviction of two serious traffic violations involving the operation of a commercial motor vehicle by the person and arising from separate incidents occurring in a three-year period, the person shall be disqualified for sixty days, which disqualification shall be imposed consecutively to any other separate disqualification imposed under division (D)(5) or (6) of this section; (b) Upon conviction of three serious traffic violations involving the operation of a commercial motor vehicle by the person and arising from separate incidents occurring in a three-year period, the person shall be disqualified for one hundred twenty days, which disqualification shall be imposed consecutively to any other separate disqualification imposed under division (D)(5) or (6) of this section; (6)(a) Upon conviction of two serious traffic violations involving the operation of a vehicle other than a commercial motor vehicle by the person and arising from separate incidents occurring in a three-year period, the person shall be disqualified for sixty days if the conviction results in the suspension, cancellation, or revocation of the holder s commercial driver s license or noncommercial motor vehicle driving privileges, which disqualification shall be imposed consecutively to any other separate disqualification imposed under division (D)(5) or (6) of this section; (b) Upon conviction of three serious traffic violations involving the operation of a vehicle other than a commercial motor vehicle by the person and arising from separate incidents occurring in a three-year period, the person shall be disqualified for one hundred twenty days if the conviction results in the suspension, cancellation, or revocation of the holder s commercial driver s license or noncommercial motor vehicle driving privileges, which disqualification shall be imposed consecutively to any other separate disqualification imposed under division (D)(5) or (6) of this section. (7) Upon a first conviction involving the operation of a commercial motor vehicle in violation of any provisions of sections 4511.61 to 4511.63 of the Revised Code or a similar law of another state or foreign jurisdiction, not less than sixty days; (8) Upon a second conviction involving the operation of a commercial motor vehicle in violation of any provisions of sections 4511.61 to 4511.63 of the Revised Code or

a similar law of another state or foreign jurisdiction within three years of the first such conviction, not less than one hundred twenty days; (9) Upon a third or subsequent conviction involving the operation of a commercial motor vehicle in violation of any provisions of sections 4511.61 to 4511.63 of the Revised Code or a similar law of another state or foreign jurisdiction within three years of the first such conviction, not less than one year; (10) Upon receiving notification from the federal motor carrier safety administration, the registrar immediately, prior to any hearing, shall disqualify any commercial motor vehicle driver whose driving is determined to constitute an imminent hazard as defined under federal motor carrier safety regulation 49 C.F.R. 383.52. (E) For the purposes of this section, conviction of a violation for which disqualification is required includes conviction under any municipal ordinance that is substantially similar to any section of the Revised Code that is set forth in division (D) of this section and may be evidenced by any of the following: (1) A judgment entry of a court of competent jurisdiction in this or any other state; (2) An administrative order of a state agency of this or any other state having statutory jurisdiction over commercial drivers; (3) A computer record obtained from or through the commercial driver s license information system; (4) A computer record obtained from or through a state agency of this or any other state having statutory jurisdiction over commercial drivers or the records of commercial drivers. (F) For purposes of this section, conviction of disqualifying offenses committed in a noncommercial motor vehicle are included if either of the following applies: (1) The offense occurred after the person obtained the person s commercial driver s license. (2) The offense occurs on or after September 30, 2005. (G) If a person commits a serious traffic violation by operating a commercial motor vehicle without having a commercial driver s license in the person s possession as described in division (GG)(3)(e) of section 4506.01 of the Revised Code and the person then submits proof to either the enforcement agency that issued the citation for the violation or to the court with jurisdiction over the case before the date of the person s initial appearance that shows that the person held a valid commercial driver s license at the time of the violation, the violation shall not be deemed to be a serious traffic violation.

(H) Any record described in division (C) of this section shall be deemed to be selfauthenticating when it is received by the bureau of motor vehicles. (I) When disqualifying a driver, the registrar shall cause the records of the bureau to be updated to reflect that action within ten days after it occurs. (J) The registrar immediately shall notify a driver who is finally convicted of any offense described in section 4506.15 of the Revised Code or division (B)(4), (5), or (6) of this section and thereby is subject to disqualification, of the offense or offenses involved, of the length of time for which disqualification is to be imposed, and that the driver may request a hearing within thirty days of the mailing of the notice to show cause why the driver should not be disqualified from operating a commercial motor vehicle. If a request for such a hearing is not made within thirty days of the mailing of the notice, the order of disqualification is final. The registrar may designate hearing examiners who, after affording all parties reasonable notice, shall conduct a hearing to determine whether the disqualification order is supported by reliable evidence. The registrar shall adopt rules to implement this division. (K) Any person who is disqualified from operating a commercial motor vehicle under this section may apply to the registrar for a driver s license to operate a motor vehicle other than a commercial motor vehicle, provided the person s commercial driver s license is not otherwise suspended. A person whose commercial driver s license is suspended shall not apply to the registrar for or receive a driver s license under Chapter 4507. of the Revised Code during the period of suspension. (L) The disqualifications imposed under this section are in addition to any other penalty imposed by the Revised Code. Amended by 129th General Assembly File No. 71, HB 337, 1, eff. 1/27/2012. Effective Date: 01-01-2004; 03-29-2005 4506.15 Prohibited acts. (A) No person who holds a commercial driver s license or operates a motor vehicle for which a commercial driver s license is required shall do any of the following: (1) Drive a commercial motor vehicle while having a measurable or detectable amount of alcohol or of a controlled substance in the person s blood, breath, or urine; (2) Drive a commercial motor vehicle while having an alcohol concentration of fourhundredths of one per cent or more by whole blood or breath; (3) Drive a commercial motor vehicle while having an alcohol concentration of fortyeight-thousandths of one per cent or more by blood serum or blood plasma;

(4) Drive a commercial motor vehicle while having an alcohol concentration of fiftysix-thousandths of one per cent or more by urine; (5) Drive a motor vehicle while under the influence of a controlled substance; (6) Drive a motor vehicle in violation of section 4511.19 of the Revised Code or a municipal OVI ordinance as defined in section 4511.181 of the Revised Code; (7) Use a motor vehicle in the commission of a felony; (8) Refuse to submit to a test under section 4506.17 or 4511.191 of the Revised Code; (9) Operate a commercial motor vehicle while the person s commercial driving privileges are revoked, suspended, canceled, or disqualified; (10) Cause a fatality through the negligent operation of a commercial motor vehicle, including, but not limited to, the offenses of aggravated vehicular homicide, vehicular homicide, and vehicular manslaughter; (11) Fail to stop after an accident in violation of sections 4549.02 to 4549.03 of the Revised Code; (12) Drive a commercial motor vehicle in violation of any provision of sections 4511.61 to 4511.63 of the Revised Code or any federal or local law or ordinance pertaining to railroad-highway grade crossings; (13) Use a motor vehicle in the commission of a felony involving the manufacture, distribution, or dispensing of a controlled substance as defined in section 3719.01 of the Revised Code or the possession with intent to manufacture, distribute, or dispense a controlled substance. (B) Whoever violates this section is guilty of a misdemeanor of the first degree. Amended by 129th General Assembly File No. 71, HB 337, 1, eff. 1/27/2012. Effective Date: 01-01-2004; 03-29-2005

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Huey Law Summary - D. Timothy Huey - Attorney at Law Phone: 614-487-8667 email: dthlaw@gmail.com SFST quick sheets From 2006 Manual PREFACE TO 2006 STUDENT MANUAL The procedures outlined in this manual describe how the Standardized Field Sobriety Tests (SFSTs) are to be administered under ideal conditions. We recognize that the SFSTs will not always be administered under ideal conditions in the field, because such conditions will not always exist. Even when administered under less than ideal conditions, they will generally serve as valid and useful indicators of impairment. Slight variations from the ideal, i.e., the inability to find a perfectly smooth surface at roadside, may have some affect on the evidentiary weight given to the results. However, this does not necessarily make the SFSTs invalid. **************************************************************** *********************************************************** (P. VIII.-19) IT IS NECESSARY TO EMPHASIZE THIS VALIDATION APPLIES ONLY WHEN: THE TESTS ARE ADMINISTERED IN THE PRESCRIBED, STANDARDIZED MANNER THE STANDARDIZED CLUES USED TO ASSESS THE SUSPECT S PERFORMANCE THE STANDARDIZED CRITERIA ARE EMPLOYED TO INTERPRET THAT PERFORMANCE IF ANY ONE OF THE STANDARDIZED FIELD SOBRIETY TEST ELEMENTS IS CHANGED, THE VALIDITY IS COMPROMISED.

HORIZONTAL GAZE NYSTAGMUS (HGN) 1. CONDITIONS WHICH MAY INTERFERE WITH SUSPECT S PERFORMANCE ON HGN A. Wind, dust, etc., irritating the suspect s eyes (P. VIII.-15) B. Visual or other distractions (always face the suspect away from rotating lights, strobe lights and traffic passing in close proximity) (P. VIII.-15) 2. PROCEDURES TO ASSESS POSSIBLE MEDICAL IMPAIRMENT a. Prior to administering the HGN, the eyes are checked for equal pupil size, resting nystagmus and equal tracking. (P. VIII.-5) B. If the eyes do not track together, or if the pupils are noticeably unequal size, the chance of medical disorders or injuries causing nystagmus is present. (P. VIII.-5) 3. ADMINISTRATIVE PROCEDURES A. Eyeglasses have suspect remove eyeglasses (P. VIII.-6) B. Verbal Instructions (P. VIII.-6) 1. I am going to check your eyes. 2. Keep your head still and follow this stimulus with your eyes only. 3. Keep following the stimulus with your eyes until I tell you to stop. C. Position stimulus 12 to 15 inches from suspect s nose and slightly above eye level D. Check for Equal Pupil Size & Resting Nystagmus - if pupils are not the same size, may indicate head injury E. Check for Equal Tracking move stimulus smoothly across suspect s entire field of vision. If eyes don't track together (or one lags behind the other), possible medical disorder, injury, or blindness F. CHECK FOR LACK OF SMOOTH PURSUIT (high speed) (P. VIII.-7) 1. The nose is the starting point 2. Check subject s LEFT EYE, then RIGHT EYE 3. Stimulus must be moved steadily 4. Speed/Timing: For each eye check, 2 seconds out, 2 seconds back 5. Tester must conduct at least 2 passes for each eye ( repeat the

procedure ) (NOTE: minimum total time to perform this check on both eyes & to repeat is 16 seconds) 6. If eyes cannot follow a moving object smoothly, count this clue G. CHECK FOR DISTINCT NYSTAGMUS AT MAXIMUM DEVIATION (slow speed) (P. VIII.-7) 1. The nose is the starting point 2. Check subject s LEFT EYE, then RIGHT EYE 3. Move stimulus until subject s eye has gone as far to the side as possible eye (Usually, no white should be showing in the corner of subject s eye) 4. Speed/Timing: Hold the subject s eye in that position (max deviation) for a minimum of 4 seconds 5. Tester must conduct at least 2 passes for each eye (NOTE: minimum total time to perform this check on both eyes & to repeat is 20 seconds) 6. Jerkiness must be distinct and sustained at maximum deviation to score this clue H. CHECK ONSET OF NYSTAGMUS PRIOR TO 45 DEGREES (P. VIII.-7) 1. The nose is the starting point 2. Check subject s LEFT EYE, then RIGHT EYE 3. Speed/Timing: Should take 4 seconds to move stimulus from subject s nose to shoulder (45 degrees is presumed to line up with every test subject s shoulder) 4. When you first observe eye jerking, stop and verify this jerking continues (NOTE: When tester first observes subject s eye jerking, check to ensure that some white of the eye is still showing closest to ear. If no white is showing, the tester has probably gone past the 45 degree mark. 5. Tester must conduct at least 2 passes for each eye (NOTE: minimum total time to perform this check on both eyes & to repeat is 20 seconds) 6. If nystagmus is observed prior to 45 degrees, score this as a clue 4. TOTAL THE CLUES (P. VIII.-8) A. Total of 6 clues; 3 for each eye B. 4 or more clues equals a 77% likelihood that subject is over.10%

BAC 5. OTHER NON-ALCOHOL CAUSES OF NYSTAGMUS other causes include seizure medications and some other drugs. A large disparity between the performance of the right and left eye may indicate a medical condition. VERTICAL NYSTAGMUS (Used to detect impairment due to drugs like PCP, CNS depressants, etc.) (P. VIII.-8) 1. Position stimulus horizontally (parallel to the ground) about 12 to 15 inches in front of subject s nose 2. Instruct subject to hold his head still, and follow the object with his eyes only 3. Raise the object until the suspect s eyes are elevated as far as possible 4. Hold for approximately 4 seconds 5. Watch closely for evidence of the eyes jerking

Walk and Turn PROCEDURES, Section VIII, Year 2006 NHTSA Student Manual Rev. 2/06 INSTRUCTION PHASE: Give the test subject following verbal instructions o Place your left foot on the line. (real or imaginary) (Demonstrate) o Place your right foot on the line ahead of the left foot, with heel of right foot against toe of left foot. (Demonstrate) o Place your arms down at your sides. (Demonstrate) o Maintain this position until I have completed the instructions. Do not start to walk until told to do so. o Do you understand the instructions so far? (Make sure the suspect indicates understanding) o When I tell you to start, take nine heel-to-toe steps, turn, and take nine heel-to-toe steps back. (Demonstrate 3 heel-to-toe steps) o When you turn, keep the front foot on the line, and turn by taking a series of small steps with the other foot, like this. (Demonstrate) o While you are walking, keep your arms at your sides, watch your feet at all times, and count your steps out loud. o Once you start walking, don t stop until you have completed the test. o Do you understand the instructions? (Make sure suspect understands) o Begin, and count your first step from the heel-to-toe position as One.

TEST CONDITIONS (P. VIII.-11) A. Test requires a designated straight line [NOTE: this criterion is in conflict with (2)(A)(1) immediately below] B. Test should be conducted on a reasonably dry, hard, level, nonslippery surface C. Subjects over 65 years old, or persons with back, leg or middle ear problems have difficulty performing this test D. Subjects wearing shoes with heels more than 2 inches high should be given the opportunity to remove shoes E. Tester should limit his movement which may distract the suspect during the test F. Conditions which may interfere with suspect s performance on WAT include wind/weather conditions, suspect s age, weight, and suspect s footwear (P. VIII.-18) B. TEST INTERPRETATION OF THE WALK & TURN (P. VIII.-10) 1. Suspect Cannot Keep His Balance While Listening To The Instructions i. Score this only if suspect does not maintain the heel-to-toe position throughout the instructions (feet must actually break apart) ii. Do not score this clue if suspect sways or uses the arms to balance, but maintains the heel-to-toe position 2. Suspect Starts Before Instructions Are Finished record clue if the suspect does not wait for begin instruction 3. Suspect Stop While Walking i. Record this clue if suspect pauses for several seconds ii. Do not record this clue if the suspect is merely walking slowly 4. Suspect Does Not Touch Heel-to-Toe gap between heel and toe must be more than ½ inch 5. Suspect Steps Off The Line the suspect steps so that one foot is entirely off the line 6. Suspect Uses Arms To Balance arm(s) must be raised more than 6 inches from sides for balance (P. VIII.-11) 7. Suspect Makes Improper Turn i. Suspect removes front foot from the line while turning ii. Suspect does not follow directions as demonstrated (i.e.,

spins or pivots around) 8. Suspect Uses Incorrect Number of Steps either more or fewer steps in either direction NOTE: If suspect has difficulty at some point performing this test, continue the test from that particular point, not from the beginning. This test may lose its sensitivity if it is repeated several times NOTE: Each clue may appear several times, but still only constitutes one clue (P. VIII.-18) NOTE: If suspect cannot do test, record observed clues and document the reason for not completing test, e.g., suspect s safety (P. VIII.-11) 3. TOTAL THE CLUES 1. Total of 8 clues 2. The presence of 2 or more clues equals a 68% likelihood that subject is over.10% BAC 3. Remember, each clue may appear several times, but still only constitutes one clue. (P. VIII.-17)

ONE-LEG STAND Section VIII, Year 2006 NHTSA Student Manual Rev. 2/06 OLS) (Begins at P. VIII.-12 INSTRUCTION PHASE INITIAL POSITIONING & VERBAL INSTRUCTIONS(P. VIII.-12) Please stand with your feet together and your arms down at the sides, like this. (Demonstrate) Do not start to perform the test until I tell you to do so. Do you understand the instructions so far? (Make sure the suspect indicates understanding) When I tell you to start, raise one leg, either leg, approximately six inches off the ground, keeping your raised foot parallel to the ground. (Demonstrate one leg stance) You must keep both legs straight, arms at your side. While holding that position, count out loud in the following manner: one thousand and one, one thousand and two, one thousand and three, until told to stop. (Demonstrate and count as follows: one thousand and one, one thousand and two, one thousand and three, etc. ) Keep your arms at your sides at all times and keep watching the raised foot. Do you understand? (Make sure the suspect indicates understanding) Go ahead and perform the test. NOTE: The tester should always time the 30 seconds. If suspect counts very slowly, terminate the test after 30 seconds NOTE: If the suspect puts the foot down, give instructions to pick the foot up again and continue counting from the point at which the foot touched the ground. NOTE: If suspect can t do the test, record observed clues and document the reason for not completing the test, e.g., suspect s safety (P. VIII.-13)

B. TEST INTERPRETATION OF THE OLS TEST (P. VIII.-13) 1. Suspect Sways While Balancing side-to-side or back-andforth motion while maintaining one-leg stand position 2. Uses Arms To Balance suspect moves arms 6 or more inches from side of he body in order to keep balance 3. Hopping (to maintain balance) suspect resorts to hopping in order to maintain balance 4. Puts Foot Down not able to maintain one-leg position, but puts foot down one or more times during 30 second count NOTE: If suspect puts his foot down, instruct suspect to pick his foot back up and to continue counting from the point at which the foot touched the ground NOTE: Each clue may appear several times, but still only constitutes one clue (P. VIII.-19) 3. TOTAL THE CLUES (P. VIII.-13) A. Total of 4 clues B. The presence of 2 or more clues equals a 65% likelihood that subject is over.10% BAC (P. VIII.-13) C. Remember, each clue may appear several times, but still only constitutes one clue. (P. VIII.-19)

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ODH Chemical Testing Rules Chapter 3701-53 Alcohol Testing 3701-53-01 Techniques or methods. (A) Tests to determine the concentration of alcohol may be applied to blood, breath, urine, or other bodily substances. Results shall be expressed as equivalent to: (1) Grams by weight of alcohol per one hundred milliliters of whole blood, blood serum or plasma (grams per cent by weight); (2) Grams by weight of alcohol per two hundred ten liters of deep lung breath; (3) Grams by weight of alcohol per one hundred milliliters of urine (grams per cent by weight). (4) Nanograms by weight of a controlled substances or a metabolite or a controlled substance per milliliter of blood, urine, or other bodily substance. The results of the tests shall be retained for not less than three years. (B) At least one copy of the written procedure manual required by paragraph (D) of rule 3701-53-06 of the Administrative Code for performing blood, urine, or other bodily substance tests shall be on file in the area where the analytical tests are performed. Effective: 01/08/2009 R.C. 119.032 review dates: 10/22/2008 and 01/01/2014 Promulgated Under: 119.03 Statutory Authority: 3701.143 Rule Amplifies: 15.47.11, 15.47.111, 4511.19, 4511.191, 4511.192 Prior Effective Dates: 3/1/1968, 2/1/76, 3/15/83 (Emer.), 6/13/83, 1/1/87, 7/7/97, 9/30/02

3701-53-02 Breath tests. (A) The instruments listed in this paragraph are approved as evidential breath testing instruments for use in determining whether a person s breath contains a concentration of alcohol prohibited or defined by sections 4511.19, and/or 1547.11 of the Revised Code, or any other equivalent statute or local ordinance prescribing a defined or prohibited breath-alcohol concentration. The approved evidential breath testing instruments are: (1) BAC DataMaster, BAC DataMaster K, BAC DataMaster cdm; (2) Intoxilyzer model 5000 series 66, 68 and 68 EN; and (3) Intoxilyzer model 8000 (OH-5). (B) The instruments listed in this paragraph are approved as additional evidential breath testing instruments for use in determining whether a person s breath contains a concentration of alcohol prohibited or defined by section 1547.11 of the Revised Code, or any other equivalent statute or local ordinance prescribing a defined or prohibited breath alcohol concentration. The approved evidential breath testing instrument is: (1) Intoxilyzer model 8000 (OH-2). (C) Breath samples of deep lung (alveolar) air shall be analyzed for purposes of determining whether a person has a prohibited breath alcohol concentration with instruments approved under paragraphs (A) and (B) of this rule. (D) Breath samples using instruments listed under paragraphs (A)(1), (A)(2) and (B) of this rule shall be analyzed according to the operational checklist for the instrument being used and checklist forms recording the results of subject tests shall be retained in accordance with paragraph (A) of rule 3701-53-01 of the Administrative Code. The results shall be recorded on forms prescribed by the director of health. (E) Breath samples using the instrument listed under paragraph (A)(3) of this rule shall be analyzed according to the instrument display for the instrument being used. The results of subject tests shall be retained in a manner prescribed by the director of health and shall be retained in accordance with paragraph (A) of rule 3701-53-01 of the Administrative Code. Effective: 01/08/2009 R.C. 119.032 review dates: 10/22/2008 and 01/01/2014 Promulgated Under: 119.03 Statutory Authority: 3701.143 Rule Amplifies: 15.47.11, 15.47.111, 4511.19, 4511.191, 4511.192 Prior Effective Dates: 3/1/1968, 2/1/76, 3/15/83 (Emer.), 6/13/83, 1/1/87, 5/5/90, 12/12/94, 9/14/95 (Emer.), 7/7/97, 9/30/02

3701-53-03 Blood, urine and other bodily substance tests. (A) Alcohol in blood, urine and other bodily substances shall be analyzed based on approved techniques or methods. The technique or method must have documented sensitivity, specificity, accuracy, precision and linearity. The technique or method can be based on procedures which have been published in a peer reviewed or juried scientific journal or thoroughly documented by the laboratory. Approved techniques or methods include: (1) Gas chromatography; and (2) Enzyme assays. (B) Controlled substances or metabolites of a controlled substance as defined in section 4511.19, and drugs of abuse as defined in section 3719.011 of the Revised Code in blood, urine, and other bodily substances shall be analyzed using techniques or methods approved by the director of health as part of the permit process as specified in rules 3701-53-07 and 3701-53-09 of the Administrative Code. The approved analytical techniques or methods are: (1) Immunoassay; (2) Thin-layer chromatography; (3) Gas chromatography; (4) Mass spectroscopy; (5) High performance liquid chromatography; or (6) Spectroscopy. All positive results of tests specified in paragraph (B) of this rule must be confirmed by one or more dissimilar analytical techniques or methods and must be part of a testing procedure. The analytical techniques or methods used for confirmation must have similar or improved sensitivity, specificity, accuracy, precision and linearity. The approved techniques or methods can be based on procedures which have been published in a peer reviewed or juried scientific journal or thoroughly documented by the laboratory. Effective: 01/08/2009 R.C. 119.032 review dates: 10/22/2008 and 01/01/2014 Promulgated Under: 119.03 Statutory Authority: 3701.143 Rule Amplifies: 15.47.11, 15.47.111, 4511.19, 4511.191, 4511.192 Prior tive Dates: 3/1/1968, 3/15/83 (Emer.), 6/13/83, 1/1/87, 5/5/90, 7/7/97, 9/30/02Effec

3701-53-04 Instrument checks, controls and certifications. (A) A senior operator shall perform an instrument check on approved evidential breath testing instruments listed under paragraphs (A)(1), (A)(2), and (B) of rule 3701-53-02no less frequently than once every seven days in accordance with the appropriate instrument checklist for the instrument being used. The instrument check may be performed anytime up to one hundred and ninety-two hours after the last instrument check. (1) The instrument shall be checked to detect radio frequency interference (RFI) using a hand-held radio normally used by the law enforcement agency performing the instrument check. The RFI detector check is valid when the evidential breath testing instrument detects RFI or aborts a subject test. If the RFI detector check is not valid, the instrument shall not be used until the instrument is serviced. (2) An instrument shall be checked using a solution containing ethyl alcohol approved by the director of health. An instrument check result is valid when the result of the instrument check is at or within five one-thousandths ( 0.005 ) grams per two hundred ten liters of the target value for that approved solution. An instrument check result which is outside the range specified in this paragraph shall be confirmed by the senior operator using another bottle of approved solution. If this instrument check result is also out of range, the instrument shall not be used until the instrument is serviced or repaired. (B) Instruments listed under paragraph (A)(3) of rule 3701-53-02 of the Administrative Code shall automatically perform a dry gas control test before and after every subject test and instrument certification using a dry gas standard traceable to the national institute of standards and technology(nist). Dry gas control results are valid when the results are at or within five one-thousandths ( 0.005 ) grams per two hundred ten liters of the alcohol concentration on the manufacturer s certificate of analysis for that dry gas standard. A dry gas control result which is outside the range specified in this paragraph will abort the subject test or instrument certification in progress. (C) Representatives of the director shall perform an instrument certification on approved evidential breath testing instruments listed under paragraph (A) (3) of rule 3701-53-02 of the Administrative Code using a solution containing ethyl alcohol approved by the director of health according to the instrument display for the instrument being certified. An instrument shall be certified no less frequently than once every calendar year or when the dry gas standard on the instrument is replaced, whichever comes first. Instrument certifications are valid when the certification results are at or within five one-thousandths grams per two hundred ten liters of the target value for that approved solution. Instruments with certification results outside the range specified in this paragraph will require the instrument be removed from service until the instrument is serviced or repaired. Certification results shall be retained in a manner prescribed by the director of health. (D) An instrument check or certification shall be made in accordance with paragraphs (A) and (C) of this rule when a new evidential breath testing instrument is placed in service or when the instrument is returned after service or repairs, before the instrument is used to test subjects.

(E) A bottle of approved solution shall not be used more than three months after its date of first use, or after the manufacturer s expiration date on the approved solution certificate, whichever comes first. After first use, a bottle of approved solution shall be kept under refrigeration when not being used. The approved solution bottle shall be retained for reference until that bottle of approved solution is discarded. (F) Each testing day, the analytical techniques or methods used in rule 3701-53-03 of the Administrative Code shall be checked for proper calibration under the general direction of the designated laboratory director. General direction does not mean that the designated laboratory director must be physically present during the performance of the calibration check. (G) Results of instrument checks, controls, certifications, calibration checks and records of service and repairs shall be retained in accordance with paragraph (A) of rule 3701-53- 01 of the Administrative Code. Effective: 01/08/2009 R.C. 119.032 review dates: 10/22/2008 and 01/01/2014 Promulgated Under: 119.03 Statutory Authority: 3701.143 Rule Amplifies: 15.47.11, 15.47.111, 4511.19, 4511.191, 4511.192 Prior Effective Dates: 3/1/1968, 2/1/76, 3/15/83 (Emer.), 6/13/83, 1/1/87, 5/5/90, 7/7/97, 3/30/01, 9/30/02

3701-53-05 Collection and handling of blood and urine specimens. (A) All samples shall be collected in accordance with section 4511.19, or section 1547.11 of the Revised Code, as applicable. (B) When collecting a blood sample, an aqueous solution of a non-volatile antiseptic shall be used on the skin. No alcohols shall be used as a skin antiseptic. (C) Blood shall be drawn with a sterile dry needle into a vacuum container with a solid anticoagulant, or according to the laboratory protocol as written in the laboratory procedure manual based on the type of specimen being tested. (D) The collection of a urine specimen must be witnessed to assure that the sample can be authenticated. Urine shall be deposited into a clean glass or plastic screw top container which shall be capped, or collected according to the laboratory protocol as written in the laboratory procedure manual (E) Blood and urine containers shall be sealed in a manner such that tampering can be detected and have a label which contains at least the following information: (1) Name of suspect; (2) Date and time of collection; (3) Name or initials of person collecting the sample; and (4) Name or initials of person sealing the sample. (F) While not in transit or under examination, all blood and urine specimens shall be refrigerated. Effective: 01/08/2009 R.C. 119.032 review dates: 10/22/2008 and 01/01/2014 Promulgated Under: 119.03 Statutory Authority: 3701.143 Rule Amplifies: 15.47.11, 15.47.111, 4511.19, 4511.191, 4511.192 Prior Effective Dates: 3/1/1968, 3/15/83 (Emer.), 6/13/83, 1/1/87, 5/5/90, 9/14/94 (Emer.), 12/12/94, 1/4/96 (Emer.), 3/19/96 (Emer.), 6/13/96, 7/7/97, 9/30/02

3701-53-06 Laboratory requirements. (A) Chain of custody and the test results for evidential alcohol and drugs of abuse shall be identified and retained for not less than three years, after which time the documents may be discarded unless otherwise directed in writing from a court. All positive blood, urine and other bodily substances shall be retained in accordance with rule 3701-53-05 of the Administrative Code for a period of not less than one year, after which time the specimens may be discarded unless otherwise directed in writing from a court. (B) The laboratory shall successfully complete a national proficiency testing program using the applicable technique or method for which the laboratory personnel seek a permit under rule 3701-53-09 of the Administrative Code. (C) The laboratory shall have a written procedure manual of all analytical techniques or methods used for testing of alcohol or drugs of abuse in bodily substances. Textbooks and package inserts or operator manuals from the manufacturer may be used to supplement, but may not be used in lieu of the laboratory s own procedure manual for testing specimens. (D) The designated laboratory director shall review, sign, and date the procedure manual as certifying that the manual is in compliance with this rule. The designated laboratory director shall ensure that: (1) Any changes in a procedure be approved, signed, and dated by the designated laboratory director; (2) The date the procedure was first used and the date the procedure was revised or discontinued is recorded; (3) A procedure shall be retained for not less than three years after the procedure was revised or discontinued, or in accordance with a written order issued by any court to the laboratory to save a specimen that was analyzed under that procedure; (4) Laboratory personnel are adequately trained and experienced to perform testing of blood, urine and other bodily substances for alcohol and drugs of abuse and shall ensure, maintain and document the competency of laboratory personnel. The designated laboratory director shall also monitor the work performance and verify the skills of laboratory personnel; (5) The procedure manual includes the criteria the laboratory shall use in developing standards, controls, and calibrations for the technique or method involved; and (6) A complete and timely procedure manual is available and followed by laboratory personnel. (E) Any time the designated laboratory director is replaced, another permitted laboratory director or applicant shall be designated and approved by the director. Effective: 01/08/2009 R.C. 119.032 review dates: 10/22/2008 and 01/01/2014 Promulgated Under: 119.03 Statutory Authority: 3701.143 Rule Amplifies: 3701.143 Prior Effective Dates: 7/7/1997, 9/30/02

3701-53-07 Qualifications of personnel. (A) Blood, urine, and other bodily substance tests for alcohol shall be performed in a laboratory by an individual who has a laboratory director s permit or, under his or her general direction, by an individual who has a laboratory technician s permit. General direction does not mean that the laboratory director must be physically present during the performance of the test. Laboratory personnel shall not perform a technique or method of analysis that is not listed on the laboratory director s permit. (1) An individual who is employed by a laboratory, which has successfully completed a proficiency examination administered by a national program for proficiency testing for the approved technique or method of analysis for which the permit is sought and who possesses at least two academic years of college chemistry and at least two years of experience in a clinical or chemical laboratory and possesses a minimum of a bachelor s degree shall meet the qualifications for a laboratory director s permit. (2) An individual who is employed by a laboratory, which has successfully completed a proficiency examination administered by a national program for proficiency testing for the approved technique or method of analysis for which the permit is sought, has been certified by the designated laboratory director that he or she is competent to perform all procedures contained in the laboratory s procedure manual for testing specimens and meets one of the following requirements shall meet the qualifications for a laboratory technician s permit: (a) Has a bachelor s degree in laboratory sciences from an accredited institution and has six months experience in laboratory testing; (b) Has an associate s degree in laboratory sciences from an accredited institution or has completed sixty semester hours of academic credit including six semester hours of chemistry and one year experience in laboratory testing; (c) Is a high school graduate or equivalent and has successfully completed an official military laboratory procedures course of at least fifty weeks duration and has held the military enlisted occupational specialty of medical laboratory specialist (laboratory technician); or (d) Is a high school graduate or equivalent and was permitted on or before July 7, 1997. (B) Blood, urine and other bodily substances tests for drugs of abuse shall be performed in a laboratory by an individual who has a laboratory director s permit or, under his or her general direction, by an individual who has a laboratory technician s permit. General direction does not mean that the laboratory director must be physically present during the performance of the test. Laboratory personnel shall not perform a technique or method of analysis that is not listed on the laboratory director s permit. (1) An individual who is employed by a laboratory, which has successfully completed a proficiency examination administered by a national program for proficiency testing for the approved technique or method of analysis for which the permit is sought, who possesses at least two academic years of college chemistry and meets one of the following requirements shall meet the qualifications for a laboratory director s permit:

(a) Has at least five years of experience in a clinical or chemical laboratory and possesses a minimum of a bachelor s degree in laboratory sciences; (b) Has at least three years of experience in a clinical or chemical laboratory and possesses a minimum of a master s degree; or (c) Has at least two years of experience in a clinical or chemical laboratory and possesses a minimum of an earned doctoral degree. (2) An individual who is employed by a laboratory, which has successfully completed a proficiency examination administered by a national program for proficiency testing for the approved technique or method of analysis for which the permit is sought, has been certified by the designated laboratory director that he or she is competent to perform all procedures contained in the laboratory s procedure manual for testing specimens and meets one of the following requirements shall meet the qualifications for a laboratory technician s permit: (a) Has a bachelor s degree in laboratory sciences from an accredited institution and has one year experience in laboratory testing; (b) Has an associate s degree in laboratory sciences from an accredited institution or has completed sixty semester hours of academic credit including six semester hours of chemistry and two years experience in laboratory testing; (c) Is a high school graduate or equivalent and has successfully completed an official military laboratory procedures course of at least fifty weeks duration and has held the military enlisted occupational specialty of medical laboratory specialist (laboratory technician) and two years experience in laboratory testing; or (d) Is a high school graduate or equivalent and was permitted on or before July 7, 1997. (C) Breath tests used to determine whether a person s breath contains a concentration of alcohol prohibited or defined by sections 4511.19 and/or 1547.11 of the Revised Code, or any other equivalent statute or local ordinance prescribing a defined or prohibited breath alcohol concentration shall be performed by a senior operator or an operator. A senior operator shall be responsible for the care, maintenance and instrument checks of the approved evidential breath testing instruments listed in paragraphs (A)(1), (A)(2), and (B) of rule 3701-53-02 of the Administrative Code. Representatives of the director shall be responsible for the instrument certifications on approved evidential breath testing instruments listed under paragraph (A)(3) of rule 3701-53-02 of the Administrative Code. (D) An individual meets the qualifications for a senior operator s permit by: (1) Being a high school graduate or having passed the General Education Development Test ; (2) Being a certified law enforcement officer sworn to enforce sections 4511.19 and/or 1547.11 of the Revised Code, or any other equivalent statute or local ordinance prescribing a defined or prohibited breath alcohol concentration, or a certified corrections officer, and; (3) Having demonstrated that he or she can properly care for, maintain, perform instrument checks upon and operate the evidential breath testing instrument by having

successfully completed a basic senior operator, upgrade or conversion training course for the type of approved evidential breath testing instrument for which he or she seeks a permit. (E) An individual meets the qualifications for an operator s permit by: (1) Being a high school graduate or having passed the General Education Development Test ; (2) Being a certified law enforcement officer sworn to enforce sections 4511.19 and/or 1547.11 of the Revised Code, or any other equivalent statute or local ordinance prescribing a defined or prohibited breath alcohol concentration, or a certified corrections officer, and; (3) Having demonstrated that he or she can properly operate the evidential breath testing instrument by having successfully completed a basic operator or conversion training course for the type of approved evidential breath testing instrument for which he or she seeks a permit. Effective: 01/08/2009 R.C. 119.032 review dates: 10/22/2008 and 01/01/2014 Promulgated Under: 119.03 Statutory Authority: 3701.143 Rule Amplifies: 15.47.11, 15.47.111, 4511.19, 4511.191, 4511.192 Prior Effective Dates: 3/1/1968, 1/1/87, 5/5/90, 9/14/97 (Emer.), 12/12/97, 7/7/97, 9/30/02

3701-53-08 Surveys and proficiency examinations. (A) Individuals desiring to function as laboratory directors and laboratory technicians who apply for or are issued permits under paragraph (A) of rule 3701-53-09 of the Administrative Code shall be subject to surveys and proficiency examinations by representatives of the director of health. A survey or proficiency examination may be conducted at the director s discretion. (1) A survey shall consist of a review of the permit holder s, applicant s or laboratory s compliance with the requirements of this chapter. (2) A proficiency examination shall consist of an evaluation of the permit holder s, applicant s or laboratory s ability to test samples provided by a representative of the director, or has successfully completed a proficiency examination administered by a national program for proficiency testing using the techniques or methods for which the permit is held or sought. Proficiency examination samples may be: (a) Mailed to the facility at which the permit holder or applicant uses or plans to use the permit; or (b) Presented in person by a representative of the director at the facility where the permit holder or applicant uses or plans to use the permit. (B) During proficiency examinations, laboratory directors, laboratory technicians and applicants shall accept samples, perform tests, and report all test results to a representative of the director or the national program that administered the proficiency testing. During surveys and proficiency examinations, permit holders, applicants and laboratories shall grant the director s representatives access to all portions of the facility where the permit is used or is intended to be used and to all records relevant to compliance with the requirements of this chapter. (C) Individuals desiring to function as senior operators and operators who apply for or are issued permits under paragraph (B) of rule 3701-53-09 of the Administrative Code, shall be subject to surveys and proficiency examinations conducted at the director s discretion. (1) A survey shall consist of a review of the permit holder s or applicant s compliance with the requirements of this chapter. (2) A proficiency examination shall consist of an evaluation of the permit holder s or applicant s ability to test samples using the evidential breath testing instrument for which the permit is held or sought. (D) Individuals desiring to function as operators who apply for or are issued an operator access card under paragraph (C) of rule 3701-53-09 of the Administrative Code, shall be subject to a proficiency examination once per calendar year conducted at the director s discretion. (E) During proficiency examinations, senior operators, operators and applicants shall accept samples, perform tests and report all results to a representative of the director or the proficiency examination administered by a national program for proficiency testing. During surveys and proficiency examinations, permit holders, applicants and laboratories

shall grant the director s representatives access to all portions of the facility where the permit is used or is intended to be used, and to all records relevant to compliance with the requirements of this chapter. Effective: 01/08/2009 R.C. 119.032 review dates: 10/22/2008 and 01/01/2014 Promulgated Under: 119.03 Statutory Authority: 3701.143 Rule Amplifies: 15.47.11, 15.47.111, 4511.19, 4511.191, 4511.192 Prior Effective Dates: 3/1/1968, 5/5/90, 7/7/97, 9/30/02

3701-53-09 Permits and operator access cards. (A) Individuals desiring to function as laboratory directors or laboratory technicians shall apply to the director of health for permits on forms prescribed and provided by the director. A separate application shall be filed for a permit to perform tests to determine the amount of alcohol in a person s blood, urine or other bodily substance, and a separate permit application shall be filed to perform tests to determine the amount of drugs of abuse in a person s blood, urine or other bodily substance. A laboratory director s and laboratory technician s permit is only valid for the laboratory indicated on the permit. (1) The director shall issue permits to perform tests to determine the amount of alcohol in a person s blood, urine or other bodily substance to individuals who qualify under the applicable provisions of rule 3701-53-07 of the Administrative Code or under paragraph (A) of this rule. Laboratory personnel holding permits issued under this rule shall use only those laboratory techniques or methods for which they have been issued permits. (a) The laboratory where the permit holder is employed shall have successfully completed a proficiency examination from a national program for proficiency testing using the applicable techniques or methods, and provide to representatives of the director all proficiency test results. (b) Permit holders shall successfully complete proficiency examinations by representatives of the director using the techniques or methods for which they have been issued permits. (2) The director shall issue permits to perform tests to determine the amount of drugs of abuse in a person s blood, urine or other bodily substances to individuals who qualify under the applicable provisions of rule 3701-53-07 of the Administrative Code or under paragraph (A) of this rule. Laboratory personnel holding permits issued under this rule shall use only those laboratory techniques or methods for which they have been issued permits. The laboratory where the permit holder is employed shall have successfully completed a proficiency examination from a national program for proficiency testing unsing the applicable techniques or methods, and provide to representatives of the director all proficiency results. (B) Individuals desiring to function as senior operators or operators using instruments listed under paragraphs (A)(1), (A)(2), and (B) of rule 3701-53-02 of the Administrative Code shall apply to the director of health for permits on forms prescribed and provided by the director of health. A separate application shall be filed for each type of evidential breath testing instrument for which the permit is sought. The director of health shall issue permits to perform tests to determine the amount of alcohol in a person s breath to individuals who qualify under the applicable provisions of rule 3701-53-07 of the Administrative Code. Individuals holding permits issued under this rule shall use only those evidential breath testing instruments for which they have been issued a permit.

(C) Permits issued after the effective date of this rule under paragraphs (A) and (B) of this rule shall expire one year from the effective date, unless revoked prior to the expiration date. An individual holding a permit may seek renewal of an issued permit by the director under paragraphs (A) and (B) of this rule by filing an application with the director no sooner than six months before the expiration date of the current permit. The director shall not renew the permit if the permit holder is in proceedings for revocation of his or her current permit under rule 3701-53-10 of the Administrative code. (D) Individuals desiring to function as operators using instruments listed under paragraph (A)(3) of rule 3701-53-02 of the Administrative Code shall apply to the director of health for operator access cards on forms prescribed and provided by the director of health. The director of health shall issue operator access cards to perform tests to determine the amount of alcohol in a person s breath to individuals who qualify under the applicable provisions of rule 3701-53-07 of the Administrative Code. Individuals holding operator access cards issued under this rule shall use only those evidential breath testing instruments for which they have been issued an operator access card. (E) Operator access cards issued under paragraph (D) of this rule shall not expire unless revoked by the director under rule 3701-53-10 of the Administrative Code. To retain an operator access card under paragraph (D) of this rule the individual shall present evidence satisfactory to the director that he or she continues to meet the qualifications established by the applicable provisions of rules 3701-53-07 and 3701-53-08 of the Administrative Code for issuance of the operator access card sought. (F) To qualify for renewal of a permit under paragraph (A) or (B) of this rule: (1) A permit holder shall present evidence satisfactory to the director that he or she continues to meet the qualifications established by the applicable provisions of rule 3701-53-07 of the Administrative Code for issuance of the type of permit sought. (2) If the individual seeking a renewal permit currently holds a laboratory technician or laboratory director permit, the permit holder shall meet the requirements of paragraph (A) of this rule. (3) If the individual seeking a renewal permit currently holds an operator or senior operator permit, the permit holder shall have completed satisfactorily an in-service course for the applicable type of evidential breath testing instrument which meets the requirements of paragraph (B) of this rule, which includes review of self-study materials furnished by the director. (G) The director, director s designee or individuals appointed by the director of health are not required to retain permits or operator access cards while acting as representatives of the director. Effective: 01/08/2009 R.C. 119.032 review dates: 10/22/2008 and 01/01/2014 Promulgated Under: 119.03 Statutory Authority: 3701.143 Rule Amplifies: 3701.143 Prior Effective Dates: 3/1/1968, 1/1/87, 5/5/90, 9/14/94 (Emer.), 12/12/97, 7/7/97, 9/30/02

3701-53-10 Revocation, suspension and denial of permits or operator access cards. The director of health may deny, suspend or revoke the permit or operator access card of any permit holder or individual: (A) Who obtains or seeks to obtain a permit or operator access card falsely or deceitfully; (B) Who fails to comply with any of the provisions of rules 3701-53-01 to 3701-53-09 of the Administrative Code; or (C) Who: (1) As a senior operator, fails to demonstrate that he or she can properly care for, maintain, perform instrument checks upon, and operate the breath testing instrument for which the permit is held; (2) As an operator, fails to demonstrate that he or she can properly operate the breath testing instrument for which the permit or operator access card is held; (3) As a laboratory director or laboratory technician, fails to demonstrate that he or she can properly perform the technique or method of analysis for which the permit is held; or (4) As the designated laboratory director, fails to comply with paragraph (D) of rule 3701-53- 06 of the Administrative Code. Effective: 01/08/2009 R.C. 119.032 review dates: 10/22/2008 and 01/01/2014 Promulgated Under: 119.03 Statutory Authority: 3701.143 Rule Amplifies: 3701.143 Prior Effective Dates: 3/1/1968, 1/1/87, 5/5/90, 7/7/97, 9/30/02

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Pleadings, Issues & Motions You MUST File or Raise in a DUI case and Suggestions for those you Should or Might Want to File if you Want to Win By Tim Huey Huey Defense Firm DTHLAW@gmail.com Cell 614-519-3133 Several years ago attorney Mark Gardiner and I put together a list of Motions you Must file in a DUI case as an introduction to our Break-out presentation. I have updated that herein. Like our original summary this missive will suggest to the reader what documents and court filings an attorney should be ready to present in most DUI cases. It points out the difference / distinctions between certain types of motions, particularly the various motions that are directed at keeping evidence out of either the trial or the probable cause determination. While this article cannot cover every possible filing for every factual situation, hopefully, it will succeed in covering most filings and documents needed in the most common DUI factual situations. First a couple CAVEATs are in order: 1. This peice is not meant to cover, and will not cover, any part of the investigation side of a DUI case (i.e., where the client was drinking, who the client was drinking with, how much did the client drink, the site of the traffic stop and arrest, the police interrogation at the station, or the myriad of issues relating to breath testing.) 2. What is discussed herein is merely a starting point. Moreover, even after you have crafted the types of pleadings / motions discussed herein, in every case, you need to look your own motions over / review what is in them (quickly in many cases) and modify them / add to them. You should not be filing the exact same motion (word for word) this year as you did last year. If you do you are not reading your own motions and/or are not thinking about changes in the law, precedents / procedures and/or are not thinking enough about these issues. The must file documents and pleadings discussed in this article are for the most partessentially completed or nearly completed forms. Sure, your client's name will change, the case number will change, perhaps even the judge's name and the court will change. But what you are basically telling the court through your filings will not change. Therefore, get computerized and keep these forms on computer. It will undoubtedly save you time, and consequently, money. Assuming your client has personally appeared in your office following her arrest, she has obviously satisfied her bond requirements. Crim. R. 46, Traf. R. 4(B). Also, presume that your client's car was not towed by the arresting officer. (As a side note, ask yourself under what legal authority do officers tow away the vehicle of a first time DUI arrestee? This is a very interesting cross-examination question, and can be especially dramatic when you hand the arresting officer a copy of Title 45 and tell him to point to that legal authority.)

To begin with, you must remember that you have an important client who has paid you money to handle an important matter. You do not want her to be inconvenienced by having to make repeated trips to your office, or endure repeated phone calls from you, simply due to your lack of foresight. This means planning on your part. 1. Medical Release While not a motion, perhaps the first document you would be wise to create and have ready in a DUI case (other than your fee agreement letter) is a Release of Medical/Confidential Information or a Power of Attorney form. You won't know all the facts of your client on the her first visit. Perhaps she has a medical condition which affects her balance. Perhaps an injured leg. Perhaps she has asthma and couldn't physically provide a sufficient breath sample to register on the machine. Under any of these situations, you will need to review her medical records and speak with her physician about her condition. By having her sign a release early on you have demonstrated at least two things to your new client: 1) you will not leave any stone unturned in providing her the best defense possible; and 2) you have foresight and plan for all contingencies. 2. Notice of Appearance of Counsel Of course, the court needs to be informed that you are the attorney representing the accused. While your physical presence at the arraignment and/or forms you sign in connection therewith will normally be enough to put the court on notice that you are counsel of record, some courts require you make your appearance in writing; moreover there are other benefits for doing so. Most prosecutors are not present at arraignments. Wouldn't it be nice to see the prosecutor's face when he gets your Notice of Appearance on the case? Now he's on notice that he's in for a well-thought-out battle. Just as importantly, the written Notice will ensure that the clerk's office has your correct current address and the bailiff and prosecutor have your phone and fax number. In short, by filing the Notice, all parties know who you are and where to send you future court dates and other correspondence. You may also want to include with your Notice of Appearance, a request that the Assignment Office also notify your client of all mandatory court appearances and provide her correct / current address as well. There are a number of scenarios where you can be put on the spot if you are solely responsible for notifying the client that can be eliminated if you can arrange such dual notifications. And if you instruct your client to contact your office upon receipt of any and all court notices, BMV letters, etc you can avoid those occasions when it seems the post office (or your staff) fails to ensure you get your court notice. 3. Appeal of Administrative License Suspension If your client either tested over the legal alcohol concentration limit, or refused to submit to an alcohol concentration test, her driver's license was most likely physically taken from her and placed under an Administrative License Suspension

(ALS). She wants her license back, and it s you job to satisfy her demands (as much as humanly possible). Therefore, you must challenge her ALS through an appeal under 4511.197. As a general rule we suggest that you will want to have your written ALS appeal - challenging the ALS broadly and/or listing all four issues listed in 4511.197(C) - ready to go at the arraignment. Although many courts (still) allow you to orally appeal the ALS, the statute no longer specifically provides for an oral appeal and indeed 4511.197(B), which reads you may file the appeal, could be cited against you, especially if the Arraignment Judge fails to record your oral appeal. Time for Filing: Again, we strongly suggest you make your appeal in writing. You can do so at the person's initial appearance or within the period ending thirty days after the person's initial appearance. Note: there are judges who like(d) to apply the mandatory 5 day rule for a hearing on the ALS against Defendants by insisting on holding the ALS appeal hearing at the Initial Appearance notwithstanding a Defendant s request for a continuance. Especially with these courts, if you see no facial problems with the 2255, you might want to file your written appeal (immediately) after the arraignment. 4. Request for Stay, Motion / Petition for Driving Privileges Of course, given that the arresting officer will not be present at the arraignment. If you can not find something (missing or lacking) on the 2255 to argue about you the court will continue the ALS hearing to another date. That's fine with you, so long as the court grants a stay of the ALS, or at a minimum, grants occupational privileges to your client pending the final determination of her ALS appeal. The authority you will provide to the court for granting your requested stay or occupational privileges is State v. Hochhausler (1996), 76 Ohio St.3d 455. 5. Demand that all Proceedings be Recorded Next, ensure that ALL proceedings related to your case are being recorded in some fashion, whether on videotape, audiotape, stenographer, etc. Do not assume that this done in every case or even is the rule. In misdemeanor cases you are required to do something (file a demand) to ensure that there will be a complete record of all proceedings. One of your authors has had the experience of being told by a certain Municipal Court officer that the DUI case that was about to be tried was being recorded. It was a lie. The trial was not being recorded in any manner. When the trial ended in a mistrial after the state's main accuser testified, there was no transcript of the accuser's testimony to be had. It was a humiliating experience explaining this situation to a client, especially since Crim.R. 22 explicitly provides a rule for filing a Demand to Record All Proceedings. Often times, a trial transcript is all we have to keep trial judges honest and gain their respect and deference (following our successful appeal, of course). Make sure you have a record!

6. Demand for Jury Trial Note: Be forewarned / reminded; Jury Trials are not automatic in misdemeanor cases even if that is the procedure in the court you normally practice in. The US constitutional right to a jury trial does not apply in misdemeanor minor cases (where maximum penalty is six months or less) and while your client has a statutory right to a Jury Trial, you must make a demand therefore in writing. Be also forewarned / reminded that few things in life are as horrific and terrifying as a long, drawn-out death. Likewise, few things in life are as nauseating and pathetic as a long, drawn-out guilty plea: a DUI trial to the bench. Most Ohio DUI lawyers would assert that the majority of judges do not seem to understand -or seem to have trouble properly applying- the dual concepts of "presumed innocence" and "proof beyond a reasonable doubt" in a DUI case. (Perhaps judges are too accustomed to thinking in terms of what evidence constitutes probable cause for arrest in DUI cases or are simply unwilling question the state s evidence / chemical test results and perhaps this will some day change, but for now ) The lesson to glean from this is to get your Jury Demand in at the same time that you file your Notice of Appearance. Note: if you get into the case late in the game and/or after your client s arraignment you ll want to find out if it is already set for a Court Trial and if there is enough time before trial to undo that error. (See waiver below.) Time for Filing. While Traf. R. 9 & Crim.R. 23 (A) allow you to file the Jury Demand "not less than ten days prior to the date set for trial..." Why wait to file this demand until some time approaching the trial date? What if a judge sets your case for a Court Trial a week after the arraignment? Look at the case law and you will see that this does happen with Court Trials in some places. The bottom line: why run the risk of finding yourself with 9 days left before trial and thus reading the later part of Crim.R. 23(A) which reads: "Failure to demand a jury trial as provided in this subdivision (at least 10 days prior to trial) is a complete waiver of the right thereto." Get the Jury Demand in right away. 7. Speedy Trial Demand or Waiver or Limited Waiver It has been said in some circles that there are two things criminal defense clients rarely want: justice and a speedy trial. Jokes aside, time can often be a friend of the defendant and (perhaps more so, his lawyer.) A criminal case, like a fine wine, only gets better with age. (Original source unknown, concept embraced by Mark Gardner.) Officers memories fade, prosecutorial zeal dissipates, the court's docket needs to be cleared (your client ends up in prison in the interim). Thus, many seasoned lawyers believe that unless there is some pressing need to get the case resolved right away (client has no driving privileges in the interim), or your case is in a court system that normally has problems getting defendant to trial within the time limits established under 2945.71 et. seq., it is to the advantage of the defense to file a Notice of Waiver of

Right to Speedy Trial. Doing so gives you peace of mind to properly prepare your case at your convenience. The more you prepare, the luckier you get. Do you automatically waive your client s other rights, why automatically waive speedy trial? (Jon Saia, veteran DUI attorney.) There is a countervailing (minority?) view that not waiving speedy trial puts the heat on the prosecution and the judge and you can waive speedy trial later if you have a reason to do so. This tactic might be more useful in courts with crowded dockets and a large number of hearings / trials set at the same time. Whenever possible, try to have it both ways. (Tim Huey) In courts where you are expected or allowed to file a pleading (you draft yourself) in lieu of filling out forms at the Initial Appearance you can craft a limited time waiver. In reality there is no (legitimate) reason for a court to object if you waive time through the next set court date or if you request a date for a pre-trial conference be set and in conjunction therewith and waive time through the date the pretrial is set by the court as requested by defendant. In courts where they have forms that only give you two options (speedy trial or waiver of speedy trial) you may have to make a strategic choice. However, if you find that the waiver is causing your case to get bumped repeatedly and you or your client wants to bring the matter to a head you might consider filing a pleading withdrawing your waiver and reasserting speedy trial rights. There is no rule that specifically prohibits reasserting speedy trial and if you want the case fast tracked, making your reasserted demand known to a judge / bailiff is likely to have that effect. 8. Discovery Demand(s) Crim.R. 16 governs discovery issues in both and traffic case. Like the above discussed Jury Demand strict time-limits are applicable to discovery issues. Time for filing. Crim.R. 16(F) requires the defendant to make his motion for discovery "'within twenty-one days after arraignment or seven days before the date of trial, whichever is earlier, or at a reasonable time later as the court may permit." Don't jeopardize your case by failing to file a Motion for Discovery within the rule's set time-limits. Relying upon the good nature of the trial court to extend the time-limits for filing for discovery after you've already missed the deadline is foolhardy and dangerous. The lesson to be learned is to file your Motion for Discovery, at your client's arraignment. Note: there is nothing that prevents you from filing a basic motion framed in terms of the specifics of Crim R. 16- and subsequently requesting / demanding more specific items of discovery (that normally are not given by your prosecutor) such as documentation about chemical testing and/or other issues that may be unique to your case. You can also with an attached journal entry for the judge to sign granting your discovery motion. If you do so, you have just eliminated another time-limit issue, and you have a journal entry that says the prosecutor must provide everything you've just requested. Thus, all bases on the discovery front are covered. On your

computer, have one discovery motion ready to go for test refusal cases and another for over the legal concentration cases. 9. Requests, Motions & Orders to Preserve Evidence Believe it or not, in most DUI cases, true, objective evidence is your friend. And you may need to act to make sure some of this objective evidence is required to be preserved for your use. The most common items that you will want preserved are: video tapes from the cruiser, police station or jail and audio tapes of radio transmission or phone calls to the police (e.g. 911 or tipster calls.) However, it pays to act to preserve any and all evidence that you can think of that could be destroyed before you can get to it. Time for Filing ASAP. In acting to preserve evidence you can either file and serve on the prosecutor a Request to Preserve Evidence (especially handy where charges are not yet filed, such as in felony cases pending indictment) or you can file a Motion to Preserve Evidence. Experience and case law makes it clear that you MUST do one or the other (or both) at your client's arraignment or (in certain cases) before the arraignment if you manage it. (See Columbus v. Forrest (1987) 36 Ohio App.3d 169) There are advantages and risks with each option. The case law indicates that upon receipt of a request to preserve evidence (in possession of the police / state agents) or a demand for discovery of that evidence the prosecution must do something and can t just sit on its hands, especially if you make it clear that you fear the evidence might be destroyed without some action by the prosecution. (See Forest, State v. Benton, (2000) 136 Ohio App. 3d 801 and cases applying these decisions) Thus either a motion or a request should move the ball and responsibility into the prosecutor s court. Whichever you use be specific about what you want preserved. Please Note: here are certain trial courts / appellate districts where nothing short of destruction / spoliation in the face of an Order to Preserve is likely to get you any relief. (See State v Combs 2004 ohio 6574.) Thus, if you know you definitely want the items preserved you should file a motion and have the judge sign a journal entry prepared by you which orders the prosecutor / arresting agency not to destroy / tape-over the video, or audiotape or other specified evidence. Immediately get that entry signed and served on the prosecution -and, to be really safe, serve the agency holding the evidence. Often, the tapes will detail how long the arresting officer was following your client Careless verbal slips uttered by the arresting officer over his radio are often the perfect petard on which to hoist the falsifying officer. If nothing valuable turns up on the dispatch tapes, nothing ventured nothing gained. 10. Motion(s) to Suppress and in Limine to Bar introduction of Evidence Except where your client insists on pleading right away, it is nearly impossible to even conceive of a circumstance where reasonably effective (adequate) counsel might (logically, rationally) consider not filing a motion to suppress evidence.

Moreover, absent a well thought-out tactical decision, supported by very unique facts, you must file a Motion to Suppress. You can include in that motion alternative requests in limine to bar evidence and evidentiary grounds. Note: a in limine is not a substitute for a motion to suppress and although some courts allow you to raise evidentiary (such as the admissibility of sobriety tests at trial) making such requests in limine and/or a separate motion(s) in limine is the proper format for raising issues that are not based on either a constitutional violation or are not founded upon compliance with RC 4511.19 requirements for introduction of breath tests. Why file a motion to suppress? (Even when you think you may have no real issues.) First, the state may fail to demonstrate the stop and arrest of your client was constitutional. If so, all evidence following the stop is inadmissible and you will have won your case. Similarly, in over the legal limit cases, the state may fail to prove compliance with the proper administrative regulations governing the breath testing process. If so, the breath test may be ruled inadmissible, which would greatly strengthen your case. In addition to the pure legal issues at stake in a suppression hearing, tactical considerations must be taken into account. For example, at the hearing, you will be able to see what type of witness the arresting officer will make and size up how his testifying performance will likely be received before a jury. You also will get to hear the worst of what the officer claims your client did and looked Like on the night of his arrest. Additionally, the prosecutor and your client get to see and hear how all the evidence will play out in a trial-like setting. This may help both to form a more realistic outlook for their chances of success before a jury. For all these reasons, there is no substitute for filing a Motion to Suppress/Limine. As with a number of the aforementioned filings, strict time limits exist for counsel to file a Motion to Suppress/Limine. Traf.R. 11(C) states that suppression motions "shall be made within thirty-five days after arraignment or seven days before trial, whichever is earlier." Traf.R 11(F) states that failure to a file suppression motion within the time-limits of Traf.R. 11(C) "shall constitute waiver thereof..." You therefore have a choice of three basic time options. First, file your Motion to Suppress/Limine at your client's arraignment or shortly thereafter. Second, at the arraignment, request the judge to grant you an extension of time in which to file your motion. For example, get permission to file your suppression motion within 3 weeks following the pre-trial, or the completion of discovery. Make sure to get a journal entry to that effect. Lastly, keep track of day thirty-five following your client's arraignment and make sure you get your motion in before that deadline. Obviously, the last option poses the greatest risk of a waiver situation (missing the filing deadline). Therefore, it should be avoided. The second option is much better, if you can find a judge to grant your request. If granted you have successfully avoided the "waiver" situation and will be able to

file a Motion to Suppress/Limine based on the underlying facts of your client's case. Perhaps, for this reason, this option is the best of the three. The first option - filing the suppression motion at, or shortly after arraignment - is also acceptable. Under this option, you will likely be filing a suppression motion without being aware of all the factual issues in your client's case. No problem (generally). Since the vast majority of "refusal" cases have similar issues and likewise, the vast majority of "over the legal limit" cases are similar issues, having a form" Motion to Suppress/Limine on your computer ready to file under either situation will cover most bases. Shotgun / Form Motions Specificity / factual basis. While you can tailor your motions to suppress/ in limine to the facts of a certain especially where there are unique facts / issues, counsel highly suggests you do not limit yourself unnecessarily. That is you may wish to include factual issues specific to a given case or expand your motion to cover unique issues, but you should think long and hard before you eliminate any challenges related to the constitutionality of the officers stop, arrest or actions or the foundation for admission of the chemical test. As seen below, you have very little to lose by including, in minute detail, every part of the ODH rule requirements in your motions. According to the Ohio Supreme Court, as long as your suppression motion states with particularity what it is you are challenging (sec Crim.R, 47), the practice of filing what has been termed a "shotgun motion" is acceptable under authority of State v. Shindler (1994), 70 Ohio St.3d 54. We do note that there are courts / jurisdictions that disapprove of (and criticize) so called shotgun motions. However, post Shindler there is only one reported case where a trial court s complete denial of a motion to suppress without a hearing has been upheld. The authors submit that the primary (most legitimate) basis for the appellate court s ruling was that the motion was in essence too short / cursory. In short the court held that the motion was not a Shindler Motion. Quite simply the best basis a court will have for completely denying your motion without any hearing is (still) that your motion was not as particularized as Shindler s. Meeting and exceeding Shindler s particularization requirements is the best way to protect your clients rights / interests and position yourself for appeal. If you are denied a hearing and you were very particular (met Shindler) you will have a great basis for appeal (and find support among your colleagues in that appeal.) Short of denying a hearing the worst a court can do is find against you on those issues that it thinks are too picky, even then you are no worse off than if you never raised them. Hopefully, this article has succeeded in covering the most common documents and court filings that au attorney representing a client charged with DUI should be prepared to present in most cases. Having the aforementioned documents and filings ready to go at the beginning of each DUI case will undoubtedly save you time and money. Be aware; the documents and

filings covered in this article are a starting point only; they are not a substitute for the careful analysis, planning and creativity that each case deserves. Happy hunting.