These radical changes are attributable to a heightened national awareness of the DUI problem. Spurred on by constant media attention and such lobbying groups as Mothers Against Drunk Driving (MADD), legislators across the country and particularly Ohio have stumbled over each other to provide prosecutors with tougher weapons and stiffer penalties. It is therefore the responsibility of the DUI defense attorney, of course, to keep abreast of the changes in the law and understand and counter these new weapons with weapons of his own.In 1982, Ohio's legal limit was reduced from .15% to .10%. Despite this change, neither alcohol-related traffic deaths nor DUI arrests diminished. In 2003, the legal limit was further reduced to .08%. Despite this change, in 2004 and 2005, alcohol-related deaths on the nation's roads actually increased nearly 2%. The federal government is now looking at the DUI battle from the correct perspective - treat DUI offenders more aggressively with counseling rather than hard court sanctions.
In a typical DUI prosecution, has two companion charges (1) operating a vehicle under the influence and (2) a BAC or blood-alcohol concentration offense, testing over the legal limit. The BAC violation is completely unconcerned with whether the driver was intoxicated or not: the crime is a biological one. There is a presumption that if a Defendant tests over the legal limit he is presumed to be under the influence. Thus the prosecutor's job is made considerably easier - and the DUI lawyer's more difficult.
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New and more sophisticated analytical devices have been introduced to prove the Defendant’s blood-alcohol content. Once considered "state-of-the-art", the Breathalyzer 900 and 900A are now looked on as the simplistic "Model Ts" of the breath testing scene. Infrared spectroscopic instruments have taken over the field, with such units as the Intoxilyzer 5000 offering three-band analysis, internal computerization, acetone detection, and radio frequency interference options. Most recently, Draeger has offered its new Alcotest 7110, combining fuel cell technology with an improved infrared wavelength. Blood and urine samples are analyzed less commonly with traditional methods and more frequently with headspace gas chromatography.
But as the methods of analysis become more complex, the possibilities for error grow - and the problem becomes more difficult for the Ohio DUI attorneys to handle. The phenomenon has created difficulties across the full spectrum of chemical analysis. Thus, for example, the spread of infrared analysis requires the DUI attorney to become familiar with light-wave theory and such potential defects as nonspecific analysis and the effects of acetone and acetaldehyde. Similarly, the theory and fallacies of retrograde extrapolation must be understood if the DUI attorney is to effectively attack any method of blood-alcohol analysis. He must be able to expose the weaknesses of the computer programming in the newer breath machines, such as the "assumed" alveolar air ratio used in computing blood-alcohol levels. As these instruments become ever more sophisticated, they are also increasingly susceptible to false readings caused by radio frequency interference.
The DUI attorney must become familiar with this phenomenon and with the admissions by the federal government and the manufacturers themselves as to its effects. Quite simply, the DUI lawyer who does not familiarize himself with recent developments in blood-alcohol analysis is lost and is not an effective advocate.
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Chemical analysis has not been the only arena to experience radical evidentiary changes. Even traditional "field sobriety tests" have witnessed innovations. The "horizontal gaze nystagmus" HGN or “pen test”, for example, has spread rapidly across the country and can be devastating evidence - if the DUI attorney is unprepared to expose its foundational and physiological defects. It is a subjective test, but there are objective standards and protocols that must be followed and observed in order for the test to be properly administered. In addition, new models of hand-held preliminary breath-testing devices “PBT” are becoming increasingly common among police officers. While the results of a PBT test are not admissible in court, the results may provide a police officer with probable cause to request additional tests and to arrest for DUI.
As the new DUI laws, procedures, and forms of evidence have been introduced, so the courts have kept pace, with a seemingly unending stream of appellate decisions. In Ohio, appellate courts have busily churned out contradictory decisions concerning such diverse subjects as reasonable suspicion to stop, probable cause to arrest, what constitutes a traffic offense, DUI roadblocks, foundational requirements for blood-alcohol analysis, right to counsel, admissibility of refusal evidence, penalty enhancement and double jeopardy in administrative license suspension cases.
Concurrent with these changes is a marked increase in the severity of sentences rendered in DUI cases. Whereas in the past an offender could expect a fine, probation, and perhaps attendance at a "drunk driving school," he or she is now increasingly faced with loss of his driver's license and mandatory jail sentences - and, in cases of repeat offenders, with long terms or even felony status.
A first time offender now only faces stiff fines and penalties from the Court, but also license reinstatement fees from the State, the inconvenience of only being permitted to drive to and from work during a suspension period, the inability to expunge the conviction, and the stigma and public humiliation associated with the arrest and conviction.
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Underlying this recent rash of developments has been a growing federal presence in the DUI field. Through a "carrot-and-stick" approach using federal highway funds, and with the ominous threat of the Commerce Clause, federal authorities are successfully bringing pressure on states to meet federal guidelines concerning DUI per se laws, intoxication levels, blood-alcohol analysis, sentencing standards, standardized field sobriety tests, "zero tolerance" laws for drivers under 21, etc. As federal involvement continues, the drunk driving laws, evidence, and procedures in states across the country will continue to become even more uniform. Currently, the legal limit for offenders under the age of 21 is lower that the .08 legal limit and the federal government intends to lower them even further.
What does all of this mean to the Ohio DUI attorney representing a client charged with driving under the influence? It means that education and preparation are more important than ever. The field of DUI litigation has always been a difficult one: its complexity has easily doubled in recent years. At the same time, the damage that can be suffered by the DUI client has been increased substantially.
Yet despite the vastly more sophisticated nature of DUI litigation, the client accused of this offense is likely to be defended by counsel who normally does not handle DUI or even criminal matters; the crime is unique in that it is committed primarily by individuals who are respectable citizens and who often turn to their business or family lawyer for help. As a result, this highly complex case is handled routinely by attorneys with insufficient knowledge of the extensive scientific, evidentiary, procedural, and tactical considerations involved. And the result is too often predictable. The day of simply pleading a Defendant to a charge without, at minimum, obtaining full discovery, verifying the records of the breathalyzer machine, filing a motion to suppress and conducting a hearing, and exploring all possible defenses, are long gone. There is simply too much at stake for a Defendant facing a DUI charge not to hire and retain the most experienced, specialized and competent counsel.
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