A  felony DUI is charged when the offense is a fourth or more in six years or a sixth offense in the last twenty.  This is a felony of the fourth degree.

Among all the other serious penalties that go along with a felony DUI, the most serious is that all future DUIs will be a felony even if the person maintains a prolonged period of sobriety.

“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.” 4511.19(G)(1)(e)

This is all the more reason not to enter an unevaluated plea in your DUI case.  You need a lawyer that limits his practice to DUI defense that can complete a through examination of your case and avoid any conviction for DUI if possible.

And remember, if you or a family member has been arrested for DUI in the Cincinnati Area – including: Hamilton, Butler, Warren, Clermont, Montgomery, and Greene Counties - call me, ROBERT HEALEY, or one of my associates at 513.333.0014.  We are available 24-hours a day, 7 days a week.  Because now is the perfect time to put a team that includes a FORMER POLICE OFFICER and TWO FORMER PROSECUTORS to work….for you!

Crim.R. 11 requires that a trial court advise a defendant of all of her rights in felony cases prior to accepting a guilty or no contest plea to ensure that the plea is entered into knowingly, intelligently and voluntarily.  However, most trial courts have adopted the felony standard even for serious and petty misdemeanors. 

The Court of Appeals of Ohio for the Seventh District issued an opinion in on March 15, 2010, that provides a nice overview of various rights waived upon entering a plea.  The rights are divided into constitutional and nonconstitutional as follows:

The constitutional rights waived are: 1) a jury trial; 2) confrontation of witnesses against her;  3) the compulsory process for obtaining witnesses in her favor;  4) that the state must prove the defendant’s guilt beyond a reasonable doubt on each element of the offense against her, and 5) that the defendant cannot be compelled to testify against herself.  Stave v. Heverly, 2010-Ohio-1005.

The nonconstitutional rights are that: 1) the defendant must be informed of the nature of the charges; 2) the defendant must be informed of the maximum penalty involved, which includes an advisement on post-release control, if it is applicable; 3) the defendant must be informed, if applicable, that she is not eligible for probation or the imposition of community control sanctions, and 4) the defendant must be informed that after entering a guilty plea or a no contest plea, the court may proceed to judgment and sentence.  Id.

Failure to strictly comply with the constitutional rights and substantially comply with the nonconstitutional rights will invalidate the plea.  This means that the invalid plea can subsequently be withdrawn and is often grounds for an appeal.

Also, all this might be avoided by hiring a competent DUI Lawyer to thoroughly evaluate your case.  There can be defenses to your case that you are not aware of.  The more defects we can discovery in your case the better chance of being found NOT guilty!

And remember, if you or a family member has been arrested for DUI in the Cincinnati Area – including: Hamilton, Butler, Warren, Clermont, Montgomery, and Greene Counties - call me, Robert Healey, or one of my associates at 513.333.0014.  We are available 24-hours a day, 7 days a week.  Because now is the perfect time to put a team that includes a FORMER POLICE OFFICER and TWO FORMER PROSECUTORS to work….for you!

There are several good reasons to appear at the arraignment, or first appearance.  You can make objections to the ticket and suspension, address the release of an impounded car, and obtain any evidence that might be in the file.

 Your attorney should be able to tell you when it is necessary to appear.  There are also reasons not to appear. 

 If your attorney reviewed the ticket and administrative suspension prior to court he can tell you if there are any defects in the documents.  Police do not impound all vehicles especially on a first offense.

 You may not want to appear if you will lose your job.  Your lawyer can evaluate the facts and documents particular to your case in advance of your first court appearance.

 There is a good chance that no compelling reason to appear exists.  In that case, your attorney can file a written plea of not guilty and reset the next hearing on a date as convenient as possible for you.

And remember, if you or a family member has been arrested for DUI in the Cincinnati Area – including: Hamilton, Butler, Warren, Clermont, Montgomery, and Greene Counties - call me, Robert Healey, or one of my associates at 513.333.0014.  We are available 24-hours a day, 7 days a week.  Because now is the perfect time to put a team that includes a FORMER POLICE OFFICER and TWO FORMER PROSECUTORS to work….for you!

A Police Officer does need a warrant to arrest you for a DUI.  Ohio Revised Code (ORC) section 2935.03(C) provides the authority for it.

When there is reasonable ground to believe that a DUI has been committed a peace officer may stop or detain the person whom the officer has reasonable cause to believe was operating the motor vehicle and, after investigating the circumstances surrounding the operation of the vehicle, may arrest and detain the person. -(ORC) section 2935.03(C)

Compare this to ORC 2935.26 which says an office shall not arrest for a minor misdemeanor offense, like a traffic ticket, where the maximum penalty is $150 fine with no jail time.  There are a few exceptions which state that you can only be arrested for this when you require medical care, refuse to offer evidence of your identity, or refuse to sign the ticket.

It is very important for your attorney to identify the point of arrest.  This is where various constitutional rights attach.

Probable cause to arrest is only based on the actual knowledge of the officer at the point of arrest.  What other people know, and what he later discovers is irrelevant.

And remember, if you or a family member has been arrested for DUI in the Cincinnati Area – including: Hamilton, Butler, Warren, Clermont, Montgomery, and Greene Counties - give our office a call at 513.333.0014….24-hours a day, 7 days a week.  Because now is the perfect time to put a team that includes a former police officer and two former prosecutors to work….for you!

First off, your DUI is not a simple matter.  It is complex, but not complicated.

A DUI is a misdemeanor of the first degree.  It is also the most serious of all misdemeanors’ of the first degree.

It is even more serious than some felonies!  Especially, a felony that is eligible for diversion and ultimately expungement. 

Even on a first DUI, you are exposed to the following consequences: mandatory jail, mandatory fine, mandatory license suspension, time where you can’t get driving privileges, up to 5 years probation, random drug/urine screens, fee for and attendance of a 72-hour driver intervention program, additional costs for probation, drug and alcohol treatment, ignition interlock, special red license plates, it can cause you to lose your job, limit your employment options in the future, it is not eligible for expungement, 6 points on license toward a 12-point suspension in any 24 month period, and 3 years for insurance premiums.

It requires diligent examination of police reports, statements, Miranda rights, validity of the stop, detention, and arrest, 911 records, police videos, checks of the calibration of the testing equipment, substantial compliance with standardized field sobriety tests, etc. 

This evidence is rarely prepared fully and hand delivered to the defense attorney in court.  Most times it requires careful evaluation for missing information leaving the diligent lawyer to seek it on his own.

It also requires evaluation of the State’s compliance with the Ohio Revised Code, Ohio Administrative Code, Ohio Department of Health Code, Field Sobriety Testing Standards, etc.

DUI defense is not something any lawyer can just show up and do.  It takes time and dedication to become familiar with the process.  It is always in your best interest to find out how many other areas your lawyer practices in.

Ask your attorney how many Motions to Suppress he has done on DUI cases.  Ask him how many cases he has tried.

All Ohio Lawyers have to maintain 24 hours of continuing education every two years.  You can ask your prospective lawyer how many of those hours were spent reviewing the area of DUI defense.

And remember, if you or a family member has been arrested for DUI in the Cincinnati Area – including: Hamilton, Butler, Warren, Clermont, Montgomery, and Greene Counties - give our office a call at 513.333.0014….24-hours a day, 7 days a week.  Because now is the perfect time to put a team that includes a former police officer and two former prosecutors to work….for you!

You have the choice to testify as a defendant in a criminal case.  Your lawyer will probably tell you not to.

If you just can live with yourself if you don’t get to tell your story, you can ask to testify.  Your lawyer will want to put it on the record that he advised you not to testify, but you are choosing to do so anyway.

He can ask the Judge to step off the bench and approach the court reporter with the prosecutor and tell the reporter that he has advised you not to testify.  However, you wish to exercise your right to speak in your defense and put your testimony on the record. 

On the other hand, there are some times when your lawyer will want you to testify.  For example, to explain and injury, physical condition, or illness.

You can also testify about your intention not to refusal a chemical test.  This can be done at a hearing on an appeal of the administrative license suspension. 

The fear of a defense attorney when a defendant testifies is what they might say upon cross examination by the prosecutor.  It can ruin a case that otherwise appears to be going well for the defense at a motion or trial.

Always speak to your lawyer before the hearing or trial about the pros and cons of taking the stand.  Remember that you have a right to testify, but your lawyer will be in a better position to give you advice about whether the benefits will outweigh the risks.

And remember, if you or a family member has been arrested for DUI in the Cincinnati Area – including: Hamilton, Butler, Warren, Clermont, Montgomery, and Greene Counties - give our office a call at 513.333.0014….24-hours a day, 7 days a week.  Because now is the perfect time to put a team that includes a former police officer and two former prosecutors to work….for you!

The law in Ohio provides for limited driving privileges when you are under a suspension for a DUI.  You are eligible for privileges after any hard suspension time.

Once elligible, you can get privileges for the following reasons:  Occupational, Educational, Medical, and Vocational.

A common questions my clients ask is whether they can get privileges to go look for a job.  I tell them that it is an occupational reason and we can ask.

Privileges are given at the discretion of the Judge and there is no right to them.  My experience is that a Magistrate will not grant this.

Privileges to look for a job will be granted sometimes depending on the Judge.  If granted they will most likely only be during regular business hours 9-5 Monday to Friday.

It is more of a sure thing to get privileges, even ones that are very broad in scope if you can show actual employment.  But, I tell all my client’s that we can ask for whatever you want, and all the Judge can say in no.

And remember, if you or a family member has been arrested for DUI in the Cincinnati Area – including: Hamilton, Butler, Warren, Clermont, Montgomery, and Greene Counties - give our office a call at 513.333.0014….24-hours a day, 7 days a week.  Because now is the perfect time to put a team that includes a former police officer and two former prosecutors to work….for you!

You have a right to see the evidence in your case.  This is called the discovery process in a criminal case.

A request for discovery will ask for records and information specific to your DUI case whether it is a breath test, blood test, urine test, or refusal.  It will also include the following basic information:

1)        All police car and police station video and audio recordings relevant to the defendant’s arrest, charge, or processing.

2)        Written summaries of any oral statement, or copies thereof, made by the defendant to a prosecuting attorney or to any law enforcement officer.

3)        Recorded testimony of the defendant made before a prosecuting attorney or to any law enforcement officer.

4)       Pursuant to Crim.R. 16 (c): Books, papers, documents, photographs, tangible objects, buildings or places, or copies of portions thereof, available to or within the possession, custody or control of the state, which are material to the preparation of the defense, or are intended for use by the prosecuting attorney as evidence at the trial, or were obtained from or belonging to the defendant. 

 Pursuant to Crim. 16(d) Reports of examination and tests: which states; “Upon motion of the defendant the court shall order the prosecuting attorney to permit the defendant to inspect and copy or photograph any results or reports of physical or mental examinations, and of scientific tests or experiments, made in connection with the particular case, or copies thereof, available to or within the possession, custody or control of the state, the existence of which is known or by the exercise of due diligence may become known to the prosecuting attorney.”

Now, once you request this information the prosecutor will typically give your attorney what they have from the police.  This may or may not be everything that you want to see. 

The benefit of evaluating all of the evidence is that you can identify defects in the state’s case.  If you are able to show a defect on just one element of the offense against the defendant, the State will be unable to get a conviction against you at trial. 

As previously discussed, you have a right to this information.  Is it important?  Yes.  Can there be risks in pushing for it?  YES!

One risk of getting the evidence at all costs is that the prosecutor may refuse to offer a plea.  It may also cause a plea to come off the table if one has been previously offered. 

The prosecutor may also tell you that they asked the police for the evidence, and you have what was sent to them.  You are welcome to call the cops for more.

If you call the cops and they happen to remember something bad about that arrest, like the defendant was uncooperative, they may call the prosecutor and object to any plea.  They may also find some info that they forgot to send to the prosecutor that is going to further help the prosecutor fix a defect in their case.  This can also uncover a hostile witness they were previously unaware of.

What your attorney can do that you cannot is have a working knowledge of the process, the cops, and the prosecutor in your case.  He or she will know how to deal with each in regard to the facts of your particular case. 

One other note is that most police are trained to send information a defense attorney requests to the prosecutor’s office and NOT the defense attorney only.  At the very least you should expect that a copy of what you received will be sent to the prosecutor in the case for good or bad. 

It is very important for a lawyer to know why he is requesting information in a case, its importance, and what it is expected to show.  This means thoroughly discussing the facts of the case prior to filing for discovery or it could cause more damage than good.

And remember, if you or a family member has been arrested for DUI in the Cincinnati Area – including: Hamilton, Butler, Warren, Clermont, Montgomery, and Greene Counties - give our office a call at 513.333.0014….24-hours a day, 7 days a week.  Because now is the perfect time to put a team that includes a former police officer and two former prosecutors to work….for you!

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Here are more defenses to blood tests in DUI cases.  The Defendant’s blood sample container was not sealed in a manner to detect tampering pursuant to O.A.C. 3701-53-05 (E).

The Defendant’s blood sample container did not contain a label which contained the information required in O.A.C. 3701-53-05 (E) (1), (2) and (3). Name of suspect, date and time of collection, name or initials of person collecting sample.

The defendant’s blood sample was not kept refrigerated at all times except for transit or examination pursuant to O.A.C. 3701-53-05 (F).

The laboratory, which performed the tests of the Defendant’s blood, did not maintain a copy of the chain of custody of the results of test for alcohol or drugs of abuse for the three-year period required by O.A.C. 3701-53-06 (A).

The blood sample obtained from the Defendant and analyzed by the laboratory has not been retained in accordance with O.A.C. 3701-53-05 pursuant to O.A.C. 3701-53-06 (A). Chain of custody documents: 3 years. Sample has to be retained for 1 year.

The laboratory analyzing the Defendant’s blood sample did not participate in the national proficiency-testing program using the applicable technique or method for which the laboratory personnel sought a permit under rule O.A.C. 3701-53-09 pursuant to O.A.C. 3701-53-06 (B).

The laboratory performing the test did not maintain at least one copy of the written procedure manual in use for performing tests pursuant to O.A.C. 3701-53-03 in the area where the analytical tests were performed pursuant to O.A.C. 3701-53-06 (C).

The laboratory personnel did not conduct the test in accordance with the laboratory’s written procedure manual pursuant to O.A.C. 3701-53-06 (C).

The designated laboratory director did not review, sign, and date the written procedure manual as certifying the manual in compliance pursuant to O.A.C. 3701-53-06 (D).

The designated laboratory director did not ensure that any changes in a procedure were approved, signed, and dated by the designated laboratory director pursuant to O.A.C. 3701-53-06 (D) (1).

The designated laboratory directory did not ensure that a copy of each procedure is maintained with the date the procedure first used, revised, or discontinued pursuant to O.A.C. 3701-53-06 (D) (2).

The designated laboratory directory did not ensure that a copy of the procedure is retained for the later of three years after the procedure was revised or discontinued or in accordance with a written order by any court to the laboratory to save a specimen that was analyzed under that procedure pursuant to O.A.C. 3701-53-06 (D) (3).

The designated laboratory director did not ensure that the laboratory technicians who analyzed the Defendant’s blood were adequately trained and experienced to conduct testing of bodily fluids for alcohol and drugs nor did the designated laboratory director ensure and document the maintained competency of laboratory technicians pursuant to O.A.C. 3701-53-06 (D) (4).

Need Professional Help With Your DUI arrest in Southwest Ohio or near Cincinnati?

 Then Contact Suhre & Associates for your FREE Consultation using the contact form to the left or call our 24 hour Emergency Number at 513 333 0014.  Your attorney must be familiar with the procedures utilized in administering the chemical test as well as the procedures used to maintain and calibrate the testing equipment. At Suhre & Associates, our attorneys are familiar with the law and procedures used to calibrate the breath testing machines as well as the procedure used in administering chemical tests to a suspect.