Steve Palmer [00:00:00]:
Steve Palmer here, Lawyer Talk Podcast. You can check us out at lawyertalkpodcast.com. Today, another riveting episode of DUI three sixty where we cover all things DUI. Here in Ohio, we call it OVI. And I bring that up because today, I'm gonna talk specifically about Ohio and why some would say Ohio sucks for OVI defense. And maybe OVI defense sucks everywhere, but Ohio's got a particular problem I'm gonna try to describe today and break it down. See, Ohio, there's most states have two ways you get charged with OVI or DUI. One is the old fashioned way where you're just driving under the influence of alcohol.
Steve Palmer [00:00:33]:
That's what your granddad would have known about. He would have, been pulled over because he's swerving within his lanes, gets out of the car, maybe think, Steve Martin and the man Martin and the man with two brains can't do field sobriety tests, whatever. You know, he, he's too drunk to drive, and they have to prove that he's too drunk to drive. And that means he's driving under the influence of alcohol. That's DUI. Now the other way is called a per se way. In a highly called a per se offense, offense, meaning it's a crime if you're behind the wheel and you have a prohibited blood alcohol content as measured by your blood, breath, or urine. And there's others too, like drugs of abuse, including marijuana.
Steve Palmer [00:01:07]:
That's a different topic. But that's a per se offense. In other words, it doesn't matter. You could be driving completely sober. You could be you could look completely sober. You could act completely sober. You know, there's those people, I've known them, who can just drink a whole bunch of booze and not look like it. This is designed to impact or this is directed towards those folks.
Steve Palmer [00:01:27]:
Now why does Ohio suck? Here's why. Because in Ohio, we have a rule based on a case that happened back in, I think, 1984 called State versus Vega, v e g a. I'm gonna geek out for a second. Bear with me. But State versus Vega says that in Ohio, we're not allowed to go into a courtroom and attack the general reliability of a breath test machine. What does that mean? I can't stand in front of a jury in a per se OVI offense and say, folks, you know what? Your computer sometimes malfunctions. Anybody who's had headphones on, and and been around a power influx or if you're if you're near a outlet or something like that, you hear the you hear the buzz. It's called radio frequency interference.
Steve Palmer [00:02:07]:
Or maybe if there there's all sorts of other ways to scientifically break down why breath test machines are not or or, let's just say, subject to inaccuracies. One would be something called a conversion ratio, ratio, how you convert alcohol and how fast you do it and what the I'm not gonna again, I'm not gonna go deep into the science, but it's called Henry's law. And, you know, the the the breath test machines make certain assumptions about that. But I'm not allowed to stand in front a jury and say, folks, this machine is not always accurate. You know, generally speaking, it can make mistakes. And here, it may have made a mistake. Now what I am allowed to do and is say, in this particular case, there's a specific mistake that this that applies to my specific client, but I'm not allowed to attack this the general reliability machine. And Ohio would say, well, that's because our esteemed director of health, has already determined that machines are reliable.
Steve Palmer [00:02:56]:
So this is why I'm bringing this up because in today's day and age, there's this I'm not gonna get political, but there's this huge, debate about our administrative body of government where unelected administrative officials are making rules, and those rules apply to us, and we don't ever vote on them. Well, here we have a director of health who presumably, according to the Ohio Supreme Court, has said, you know what? You guys don't need to worry. I've looked at these machines, and they're accurate. So you don't you don't worry about it. It's not even worth your time, mister defendant charged with OBI, to have your lawyer step into a courtroom and attack the machine because I'm saying it's reliable. Now if you're thinking to yourself, that doesn't sound right, I agree. I don't think it sounds right at all. I've challenged this constitutionally all the way up and down.
Steve Palmer [00:03:37]:
I've tried in federal courts. I've tried in state courts. I've tried my workarounds. We, DUI lawyers in Ohio, hate this. And from what I can tell, there's not many other states, if if any, any, that actually have this similar type of rule. Hawaii, believe it or not, went went through this way back when before VEGA. And VEGA actually cites or talks about, Hawaii. Anyway, it it's it's a problem defending OVI cases in Ohio.
Steve Palmer [00:04:01]:
And that's why in Ohio, when you take a breath test, you really made it more difficult, to defend the case. Now I'm not saying you should or shouldn't take a breath test. That's a different discussion for a different day. And as everybody knows, this isn't legal advice. This is just me discussing interesting topics if you find such topics interesting. So what does all this mean? It means that in Ohio, if we have a breath test, it's a harder road to hoe to defend it. Doesn't mean there there are some things we can do. I mean, we can challenge whether the results should be admissible prosecutor to come in and say, well, at a minimum, you have to show that you follow the guidelines for administering the breath test.
Steve Palmer [00:04:39]:
But it's not the same as standing in front of a jury and saying, you know what? How many people had to reboot your computer in the last thirty days because it was malfunctioning, or your phone wasn't doing what it was supposed to do, or any other electronic gadget that you have? That's the same here. We can't rely on these beyond a reasonable doubt. You wouldn't in your own affairs, and you wouldn't here in this courtroom, and you shouldn't with my client. Don't get to make that argument in Ohio, and it sucks. Anyway, that's DUI 3 sixty, lawyertalkpodcast.com. Off the record on the air. Till now.