Bankruptcy cannot protect you from debts for bodily injuries you cause to another in an OVI related accident. You need to challenge the evidence any time you are faced with an OVI charge. You never know if someone may have suffered injury, even if it is not in the police report. Elyria Municipal Court assigned me to defend a young woman who suffered some mental issues, and who was charged with OVI and disregarding a traffic signal. In this case the signal was the stop bar painted on the road at an intersection. This case had all the attributes of one that could never qualify for a reduction in charges with that judge:
- Refused breath test
- Prior OVI offense or reduction
- Gave the officer a bad time
- The arresting officer would not approve a reduction of the OVI.
Most attorneys have the client plead no contest and take her lumps. She insisted she did noting wrong and shouldn’t have an OVI. I must be a bit old school. I listen to what my client has to say. There was a video of the arrest. I requested a copy mainly so I could review it with my client. Ohio State Patrol made this arrest. They normally don’t screw up an OVI arrest. They are considered the best of the best. The next pretrial the officer brought a DVD of the contact, but left before I could watch it with him. The prosecutor allowed me to take the DVD and to return it at the next pretrial. This case involved:
- Stop bar violation
- HGN test out of camera range
- Walk and Turn test
- Balance test
- Video made of defendant yelling and swearing at the officer
Any traffic case begins with probable cause for the stop. It is the reason he pulled you over. In this case the officer claimed her front tires were ahead of the stop bar at the intersection of Cleveland Street and Abbe Road in Elyria. I went to this location and photographed the intersection. I think there was a stop bar, maybe at one time. It has been patched over and generally worn away. I could barely see small parts of it and I was looking for it in the daylight. Ohio law requires for any traffic control device, including lines, to be enforceable they must be properly maintained. This one needed lots of paint to be enforceable. Strike one.
The officer gave defendant the horizontal gaze nystagmus test off camera. No one could see how it was done. He failed the defendant on all six clues. No surprise there. They fail everyone. The key is whether the officer did it right. After this test he put her into the cruiser to warm up because it was a very cold night.
The Balance Test
This is the one where the cop has you stand with your arms to your sides, raise one foot, and count out loud to 30 by thousands. He scored her as failing this because he said she raised her arms more than six inches for balance, and she swayed. She did commit these errors on the DVD, but how could he tell at the time? During most of the test he was looking another direction, into the street, and not at the suspect. Not once did he look at her feet. Strike two.
Walk, Turn and Count
This is the one you walk heel to toe nine steps out and nine steps back with your arms at your sides. You must stand heel to toe with your arms at your side when he is demonstrating the test. Unfortunately during his demonstration he did not have HIS arms at his sides. He scored defendant for failures for “moving her feet to maintain balance during the instructions, and taking the incorrect number of steps. The only time she moved her feet during the instructions was to stand straight, wrap he hair in a band, tuck her hair into her hoodie, and pull the zipper up to cover her face. She them resumed the instructional position. She did not move to “maintain her balance.” Remember, it was cold. She moved to cover up. Someone can’t count. I think it’s the trooper. The video showed his attention focused on her feet the whole time. Nine steps out. Nine steps back. He scored her as taking the incorrect number of steps. Strike three.
The Mouth That Roared
The end of the video was of defendant in the back seat yelling at the officer. The cop turned the video to catch this behavior. Interesting he couldn’t turn the camera to catch the HGN test. With over 20 minutes of yelling, the client did not slur a single word. By taking the time to review the evidence I discovered the god had feet of clay. His observations were either completely invalid, or there were no observations to begin with. It took me over 4 hours to photograph the scene and analyze the video. Time well spent. The result was that the prosecutor was willing to resolve the case without a plea to the OVI charge even over the objection of the arresting officer. The judge when faced with these facts approved this resolution.
Call For Help
The moral of this story is that even if your OVI case looks like a dead bang loser, you need to take the time, and call OVI lawyer, William Balena, at 888-633-5426 to dig into the case. There are often nuggets of gold right under your feet. When you fight your Ohio OVI it may equate to reduction or dismissal of even a difficult OVI case.