I will be speaking at a driver intervention program (DIP) in the upcoming weeks. I have spoken at these before, but this will be the first time with a new provider, second chance of Columbus. These programs are a substitute for the mandatory three days of incarceration that a judge must impose on a first offense OVI conviction. I focus my conversation on what the laws are concerning Operating a Vehicle While Impaired, specifically what the driver's rights are and what happens on second and subsequent offenses.

I regularly watch videos of OVI arrests, and it is frustrating at times to see people unwittingly compromise their own defense because they do not know what they are and are not required to do when stopped by a police officer. Of course you should always be polite and courteous, there is no reason not to be. However, you are not required to answer the officer's questions about where you are coming from and where you are going, whether or not you have had anything to drink, or what your past record is. You are allowed to politely refuse to answer these questions. If you are asked to exit your vehicle, you must do that, but you do not need to submit to field sobriety tests, or a portable breathalyzer test. Remember that you are presumed innocent, and the officer has the burden of showing that he had a reason to arrest you.

Some things I would definitely recommend against; rolling down the window 1/4" and sliding your license out through the crack, you are not fooling anyone with this trick. Also, don't try refusing the order to step out of your vehicle. If you do you may learn about the officer's favorite non-lethal weapon: the Taser! Don't put a penny in your mouth to "defeat" the breathalyzer, it doesn't work.

The best advice it to use your best judgment, and not to drive impaired. There is a possibility, however, that you will disagree with an officer who stops you regarding your level of impairment, or your lack of impairment. If you know the rules, you can even the playing field a little bit. If you find yourself in a jam, remember to call us at Yavitch & Palmer.

Scary story out of the Supreme Court of the United States today. The court refused certiaori to a case out of Virginia concerning a stop of an alleged drunk driver based on an anonymous telephone tip. The case is Virginia v. Harris and involves a case where a person called in to report a drunk driver, but did not leave a name or number. Officers found the car in question and followed it, but did not observe any traffic violations to justify a stop. The officer decided to stop the car anyway and subsequently arrested the driver for OVI. The Virginia Supreme Court threw out the conviction based on the officer's violation of Harris' Fourth Amendment right to be free from unreasonable search and seizure. Chief Justice Roberts, joined by Justice Scalia, disagrees with his colleagues and seems to favor carving out an exception to the Constitution for OVI cases. This is a dangerous precedent to establish, as it inexorably leads to exceptions for other crimes. If your neighbor's dog poops in your yard, just make an anonymous call that he has a meth lab in his basement and watch the SWAT team kick down his door!

Not only would that break down the very foundation of the Fourth Amendment, the bar is already ridiculously low for implementing a traffic stop. I often talk about the near impossibility of driving from point A to point B without violating some traffic ordinance. For example R.C. 4513.19 governing the focus and aim of headlights or failing to use a turn signal when turning or changing lanes (4511.39). There are hundreds of these regulations and "creative" officers use them to justify stops on a regular basis. In Ohio, anonymous tips must be corroborated by the officer's own observations as in Bowling Green v. Tomor, Wood App. No. WD-02-012, 2002-Ohio-6366. However, Ohio courts have held that if the tipster is identified, that indicates a higher degree of reliability, and can justify an investigative stop without corroboration Maumee v. Weisner, (1999), 87 Ohio St.3d 295, 720 N.E.2d 507.

It is discouraging that conservative jurists favor the evisceration of the already weakened protections afforded citizens by the Constitution. A constructionist interpretation in a historical context has to err on the side of protecting citizens from unwarranted intrusions by the police. Otherwise, liberty is further eroded and freedom is diminished. Thankfully, the Virginia Supreme Court got it right, and the majority of SCOTUS passed on hearing this case and potentially degrading the Fourth Amendment further.

If you are in trouble, don't take a chance. Call Yavitch & Palmer and let us help.

Be cool, it's the cops!

Reviewing some OVI videos today, and it pains me to see people doing things which are going to come back and hurt their case in court. There is no requirement that you perform the Field Sobriety Tests the officer asks you to do. Most people do not understand the rules that govern these tests, and are not aware of what constitutes a "clue" of impairment. Don't say "I couldn't do this even if I was sober" it is a game where the deck is stacked against you and it is OK to say you don't feel comfortable doing tests until you talk to a lawyer. You do have to exit your vehicle if asked to do so by an officer, but you don't have to answer questions about where you are going or coming from. If you were stopped for speeding, etc., what difference does it make where you are going? I am not encouraging you to be anything except polite and respectful, but understand that you have the right to refuse field sobriety tests.

The question of whether or not to take a breath test is a thornier issue. If you have a prior OVI conviction within 20 years, refusing to take a breath test can constitute a separate criminal act that serves to enhance the penalties you face if you are convicted of O.V.I. Recently, the Ohio Supreme Court heard a case that challenged the constitutionality of this statute because it was essentially punishing citizens for exercising their fundamental right to refuse consent to a search of their person/breath. The case is State v. Hoover, and in it the Supreme Court ruled that the statute is constitutional. So, in that instance refusing the breath test can result in an enhancement of your sentence if you are convicted of O.V.I. Providing a breath test, however, is giving the state evidence to use against you. It is a difficult decision, and one where timely legal advice is crucial. That is why it is a good idea to have 614-224-6142, our office number, programmed into your phone. The highway patrol post is not where you want to be scrambling to find a number. The Ohio Revised Code has a provision that establishes your right to talk to an attorney if you have been detained by the police. R.C. 2935.20 sets out the guidelines for your right to talk to counsel. If you call Yavitch & Palmer, you will have a live attorney to talk to at any hour of the day or night.

No one plans to be in that situation, but it can happen when you least expect it. Take a cue from the Boy Scouts and "Be Prepared"

Good news for all of you with a checkered past out there. Chris called me today and said that a juvenile conviction was preventing him from joining the Army. He said his recruiter found a juvenile conviction for Arson and Breaking and Entering and with those on his record he could not join the Army. As an Army veteran, I am always happy to help those who serve, or who aspire to serve. I did a little research, and Chris is eligible to have these convictions sealed under Ohio Revised Code 2151.356 and can subsequently have the sealed records expunged under R.C. 2151.358. So, if you have a skeleton in your closet from way back when, do not despair. There is help available if you qualify. Of course you can also have a first criminal offense expunged if it occured in adult court as well. Sometimes all it takes to make things right is a little re-write of the history books!

Morning on the Q

Steve and I just finished our call in bit on Q-FM with Wags and Elliott. Always a good time over there, and we never fail to get some interesting calls. And by the way, congratulations to Wags on his 30 years on the Q.

Dan called and was wondering if it was legit for the cops to climb over his fence and pull up his "horticulture project" he had going out by his shed. The answer is "maybe." If it is visible to passers-by, or even from a police helicopter, then the police probably don't need a warrant to come on to your property and seize contraband. The surrounding of your house, which would include most suburban yards, is called the "curtilage" and is considered to be part of the home for privacy purposes. This is as opposed to "open fields" owned by the homeowner that are away from the home on a larger property. The open fields areas are not protected to the same degree by the Fourth Amendment from police intrusion and searches. In Dan's case, the linchpin will be how the officers became aware of the "garden" and on what basis they entered his property. There is an argument to be made that if they were on his property on two separate occassions, then they certainly had the time and the opportunity to obtain a warrant to conduct a search. Since they did not, the question turns to whether or not the evidence obtained (the green, leafy substance) can be used against Dan in any subsequent prosecution. Give us a call Dan, this is an interesting question.

Inaugural post

I am a criminal defense attorney in Columbus, Ohio. I work at a mid-size firm (5 attorneys) that does nothing but defend people accused of crimes. We do a great deal of O.V.I. (drunk driving) work and handle a large volume of drug cases but will handle anything from a speeding ticket to a capital murder case. The name of the firm is Yavitch & Palmer for the founders Eric Yavitch and Steve Palmer. Eric left us tragically last year, but his name lives on at the firm that he helped to establish. I enjoy this work, although it is challenging to always be the underdog. We are a results-oriented firm, and are always looking to achieve the best outcome for our clients. It is frustrating though, to see people who are arguably innocent plead guilty to avoid the risk of a trial because they are faced with the daunting mechanisms of the State. As one of my favorite people Sir Winston Churchill said, "it is the worst system in the world, except for all the others." Over the days and weeks that follow I plan to talk about the state of the law in Ohio, and perhaps comment on the state, local and national political scenes as well as our interaction with the rest of the world.

When I am not lawyering I am a soldier in the Ohio National Guard. I have served for about 20 years and I am currently a 13F, Forward Observer in the 148th Infantry Regiment in Walbridge, Ohio. I was deployed for all of 2008 to Kuwait and Iraq where I commanded a convoy escort team guarding convoys from Kuwait to all of the major bases in Iraq. It was an honor to serve, and I was blessed to be with a great group of men who always looked out for one another, and continue to since our return. Prior to that I was deployed to the United Kingdom for a year in 2004 and went down to Mississippi for a few weeks for Hurricane Katrina recovery operations.

I have a wonderful family that I am proud to be a member of in Grove City, Ohio. I have been married to my lovely wife Jamie for 5 years, and I am looking forward to many more.