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May 11, 2007 -- Columbus Dispatch Interview of Attorney Brad Koffel regarding new "forced blood" DUI legislation.

DUI suspects may have to take test

Bill mandates breath or blood for repeat offenders

Friday, May 11, 2007

THE COLUMBUS DISPATCH

Heeding the advice of defense lawyers, savvy drunken-driving suspects long have refused to blow into the Breathalyzer.

It's far better, lawyers say, to deal with a license suspension accompanying refusal than risk a near-certain DUI conviction and jail time on unreliable breath testing.

But the Ohio Senate moved yesterday to remove the test-refusal option from the playbook of repeat drunken-driving offenders.

Whether by blood or breath, a bill approved yesterday would require police to extract incriminating evidence, even under protest, from drivers with two or more DUIs within six years.

The bill, approved unanimously and sent to the House, would end the right of repeat offenders to refuse to submit to blood-alcohol testing.

The proposal would authorize police officers to use "whatever reasonable means are necessary" to determine whether a suspect is drunk.

A Columbus lawyer who specializes in defending DUI suspects says the proposed law would formalize a power that police already possess.

Police can demand blood from any drunken-driving suspect who refuses to blow into a Breathalyzer -- no warrant required, lawyer Brad Koffel said.

It's simply that police find it easier and quicker to cite people for test refusal than hauling them to a hospital for a blood draw, he said.

Under state law, Ohio drivers grant their consent to undergo breath, blood or urine testing for alcohol or illicit drugs when they receive a license.

Sgt. John Maxey, spokesman for the State Highway Patrol, conceded that testing of drivers who refuse is not routine except in Wayne County.

"Forced" blood-alcohol testing generally comes into play only in wrecks involving serious injuries or deaths, Maxey said. Officers usually get warrants from court to obtain blood, he said.

In Circleville, Municipal Court Judge John Adkins welcomes officers to awaken him in the middle of the night and obtain a warrant to draw blood when a suspect refuses a breath test.

Koffel said lawmakers are bypassing an opportunity to ensure better justice by not changing DUI breath-testing procedures.

He generally advises clients not to submit to Breathalyzer testing because a one-shot test can yield inaccurate results.

Many states have adopted dual breath tests, with a second coming 10 minutes after the first, to confirm results, he said.

"One sample is inherently unreliable," Koffel said. "How can you take one sample and say, 'This is proof beyond a reasonable doubt?' "

Drivers also can refuse an officer's request to take field sobriety tests, but such refusal generally ensures arrest, lawyers say.

The State Highway Patrol's Maxey defends breath-testing. "I've been on the road 17 years and I've been in contact with a lot of people under the influence of alcohol and tests have been very reliable."

In Lancaster, an unusual case has arisen in which a motorist was charged with DUI despite a breath test that fixed his blood-alcohol content at zero. A reading of at least 0.08 percent constitutes legal intoxication in Ohio.

Attorney James Linehan is incredulous that his client, Russell Errett, 50, of Lancaster, was charged despite the results of the voluntary test. A jury trial is scheduled for May 22.

"What I find fascinating is that the prosecutor apparently puts no stock in the Breathalyzer in this case" while routinely defending breath-test results in other DUI cases, Linehan said.

In a press release, Lancaster City Prosecutor Terre Vandervoort said the officer acted properly in stopping Errett after observing him weaving on a street on April 19.

The officer believed Errett failed a battery of field sobriety tests and was an "impaired driver," which can constitute a DUI charge regardless of testing results, she said.

_________________________________________________________________

DUI Ignition Interlock Devices Will Result in Jailing Innocent Motorists

COLUMBUS—May 2, 2007

A draft bill that would require alcohol Ignition Interlock devices is getting quite a bit of publicity as a sound idea. However, Columbus DUI lawyer Brad Koffel, has successfully challenged the accuracy and reliability of these devices in Columbus courts. According to Koffel, “these small machines are not specific for alcohol, are too sensitive to outside temperature changes, are not compatible with new electronics in newer car models, are easily tricked, provide more false positives than true positive results, and that is before you get around to the lack of training for the folks who are installing them for the courts.”

In 2005, Koffel was hired by a local businessman who was ordered to install one in his new Land Rover after a DU conviction. Over the next 10 months, Koffel’s client dutifully blew into the machine before each attempt to start his SUV. Eventually, the company that installed the device sent a letter to Judge stating that Koffel’s client “failed” two times suggesting that he drank alcohol before driving. The man vehemently denied ever drinking alcohol and driving. He was facing nearly 6 months in jail for violating his probation.

Koffel investigated on behalf of his client. What Koffel discovered resulted in the Judge ordering the immediate removal of the ignition interlock device from the vehicle. The Judge also questioned the science and legitimacy of these devices.

Specifically, Koffel reported to the Court that his client’s printouts showed 35 “failures” not two as suggested by the company. Also, the president of the company admitted that many foods other than alcohol cause false positives. Koffel presented evidence to the prosecutor’s office of a “failure” on a day and time when the client was actually at Koffel’s office.

Koffel says, “We are learning that clients are simply leaving their vehicles on with the doors locked instead of turning off the vehicle and running the risk that it will take 15 – 90 minutes for the interlock to permit them to start the vehicle again. I had one client recently tell me that his interlock device was so unreliable that he leaves his car running while he is at work!”

It is urged by Koffel and many other lawyers with knowledge of these devices that the legislature fully investigate the claims made by the manufacturer’s before innocent people are wrongly jailed on probation violations.

FAMILIES, ACTIVISTS CELEBRATE LOWER DUI LIMIT

Wednesday, July 2, 2003

By Jon Craig
THE COLUMBUS DISPATCH
NEWS 04C

Two mothers, a sister and a wife -- all of whom lost loved ones to impaired drivers -- came together yesterday to praise a new state law lowering the blood-alcohol limit to 0.08 percent.

"Hopefully you'll never get a call like I did on Christmas Eve of 2001,'' said Darcee Claxon of South Webster in Scioto County. Claxon cried while describing her younger brother, Cody Michael Hammersley, "who forever will be 17'' and dreamed of playing college baseball and getting married.

Hammersley was fatally injured 500 feet from his home in Coshocton when his car was broadsided. The other driver, also 17, registered 0.082 on the Breathalyzer but was not charged with driving under the influence under the old limit. Still, he served 18 months in jail and in a rehabilitation center on another charge.

Until yesterday, the blood-alcohol threshold was 0.10 percent. The new limit means a 170-pound man drinking four to five beers an hour -- or a 137-pound woman drinking three beers an hour -- is too drunk to legally drive.

Meanwhile, Columbus attorney Bradley P. Koffel questioned the effective date that people can be charged under the lower limit. Koffel said his reading of House Bill 87 makes the new threshold effective in six months on Jan. 1, 2004.

"As a defense lawyer, if we have any clients charged with DUI for testing between 0.08 and 0.099, we will be requesting dismissal of that charge,'' he said. "Even if they're right, there is still going to be a lot of litigation and discussion in the courts.''

Speaking at a press conference at a Dublin hotel, Claxon implored teen-agers to take keys away from friends who insist on drinking and driving. She said her brother lost a two-week battle in the hospital before being declared brain-dead.

"I watched my brother's heart beat for a last time. Those images still haunt me today. I cannot explain the immense pain. Cody was a fighter (but) he doesn't have a voice anymore -- he was robbed of that -- to let people know drunk driving is not an accident.

"We pay daily, and we will pay for the rest of our lives,'' Claxon said. "I believe (0.08) will save the lives of other people.''

Others attending the press conference lost loved ones to drivers legally drunk under the old law.

Louanne Jones of Bexley lost her 19-year-old son, Brett Alan Sutton, in 1995 to a five-time offender now serving a 10-year prison sentence related to her son's death. "Slowly but surely we're changing the attitudes,'' she said.

Donna Maines' 18-year-old daughter, Jennifer, was killed on Thanksgiving 1996. The Newark mother's pain is compounded by the fact that the drunken driver was arrested -- again -- and imprisoned seven weeks ago.

And Sherrie Kass-Roth of Gahanna lost her 45-year-old husband, David, in a 1995 crash with a drunken driver that also severely injured their daughter, Bethanie.

It is estimated that about one-fifth of all alcohol-related crashes occur with drivers who test between 0.08 percent and 0.10 percent.

Sen. Jay Hottinger, a Newark Republican who sponsored the legislation, estimated the lower limit will save 30 lives the first year. The change also is expected to save at least $30 million annually in federal transportation funds as Ohio became the 42nd state to toughen its standard. The federal government threatened to cut off road-construction dollars starting in October for states that do not comply.

Hottinger was joined at the news conference by Maj. James H. Walker of the State Highway Patrol and Sgt. Brian Webster of the Newark Police Department.

"It's long overdue,'' Webster said. "Quite frankly, I would like to see it lowered even more.''

Using yellow crime-scene tape, officials from Mothers Against Drunk Driving of Ohio cordoned off 379 empty seats representing people killed in alcohol-related crashes last year in Ohio. More than 11,400 were injured.

"What a very sobering view that is,'' Hottinger said.

LIMIT OF 0.08 IS AN ENFORCEMENT DILEMMA

Sunday, March 23, 2003
EDITORIAL & COMMENT 04B

The House-passed Ohio transportation budget bill lowers Ohio's legal blood-alcohol content level for drunken driving from 0.10 percent to 0.08 percent. A 2000 federal law requires states to adopt the 0.08 percent blood-alcohol level or lose millions of dollars in highway construction projects. Ohio becomes the 36th state to lower the level.

This change in the legal limit has some serious hidden issues nobody is mentioning. The 0.08 percent legal limit, however well-intentioned, is forcing law enforcement to guess whether or not a driver is at 0.08 percent because the physical signs of impairment at that level are either not present or extremely difficult to detect.

The sponsors of the 0.08-percent standard claim that it will save more lives on Ohio's roadways. It may, but so would banning cellphone conversations in vehicles, eating in vehicles and driving while too tired.

The problems with the 0.08-percent standard are threefold. First, from a toxicology perspective, drivers at that level generally will not exhibit any signs of erratic driving or illegal activity that must be seen before police can pull them over. Second, lowering the limit to 0.08 percent makes people criminally inebriated despite the fact that they will probably look fine, sound fine, walk fine and stand just fine. How will police find probable cause to arrest these folks?

Finally, our General Assembly just gave defense attorneys another reason to tell clients not to take the breath test. Without the breath test, there is no 0.08-percent charge. Without the 0.08-percent charge, the state will have to prove the person was noticeably impaired. That's going to be a tall order to fill if the person was arrested on suspicion of being 0.08 percent.

We may have a spike in drunken-driving arrests in the near future. But the public should be prepared for a corresponding spike in dismissed or reduced charges for lack of admissible, reliable evidence if suspected 0.08-percent drivers refuse to take the breath test.

BRADLEY P. KOFFEL, attorney
Upper Arlington

FOR IMMEDIATE RELEASE: COLUMBUS DUI LAWYER COMMENTS ON CHANGE TO OHIO DUI LAW

COLUMBUS-March 12, 2003-The newly passed Ohio transportation budget bill lowers Ohio's legal blood alcohol content level from 0.10 to 0.08. A 2000 federal law required states to adopt the 0.08 blood alcohol level or lose millions of dollars in highway constructions projects. Ohio becomes the 36th state to lower the level.

According to Brad Koffel, a Columbus-based DUI lawyer, this change in the legal limit has some serious hidden issues nobody is mentioning. "The .08 legal limit, however well-intentioned, is forcing law enforcement to guess whether or not a driver is at .08 because the physical signs of impairment at that level or either not present or extremely difficult to detect."

The sponsors of .08 claim that it will save more lives on Ohio's roadways. The problems, according to Koffel, are three-fold:

"First, from a toxicology perspective, .08 drivers are generally not going to exhibit any signs of erratic driving or illegal activity that must be seen before police can pull them over. Second, lowering the limit to .08 makes one 'criminally inebriated' despite the fact they will probably look fine, sound fine, walk fine, and stand just fine-how are police going to have probable cause to arrest these folks who don't have noticeable signs of impairment? The answer is they are going to arrest people who have been drinking and not take any chances."

"Finally", according to Koffel, "our General Assembly just gave defense attorneys another reason to tell clients not to take the breath test. Without the breath test, there is no .08 charge. Without the .08 charge, the state will have to prove the person was "noticeably impaired". That's going to be a tall order to fill if the person was arrested on suspicion of being .08."

In these times of state budget cuts, Ohio cannot afford to lose the highway funding from the federal government.

Brad Koffel limits his practice to DUI and alcohol/drug offenses throughout Ohio. Recognized by Best Lawyers in America, Mr. Koffel has been recognized by his peers as one of the outstanding DUI attorneys in the country. He is trained in the theory and operation of Ohio's main breath test machine (BAC Data Master), certified in Standardized Field Sobriety Testing from the National Highway Traffic Safety Administration, and is a frequent author and lecturer around Ohio on DUI. He was chairman of the Ohio Association of Criminal Defense Lawyers annual DUI defense seminars from 1999-2002.

FOR FURTHER INFORMATION CONTACT: Mr. Koffel is available for further comment and interview and can be reached at his office (614-481-7215 ).

August 17, 2000

Press Release for Immediate Release
Attorney Bradley P. Koffel
614-481-4480

Drunken Driving Cases take a Hit by Ohio Supreme Court
The Ohio Supreme Court just handed down a significant victory for motorists suspected of DUI by recognizing the fact that roadside field sobriety tests are inherently difficult and must be administered exactly the way officers were trained to administer them. The Supreme Court in a 4-3 decision ruled that if a police officer does not instruct, demonstrate, administer, and evaluate these tests in compliance with their training, the tests cannot be used against the motorist in court.

This is perhaps the most significant victory for motorists suspected of DUI to come out of the Ohio Supreme Court in the past decade. The immediate impact will be a challenge to all current and future DUI cases. Our law firm has found that the majority of arresting officers in DUI cases do not instruct, demonstrate, administer, and evaluate these tests in compliance with their training. Attorney Brad Koffel limits his professional practice to DUI cases in Ohio and is certified by the federal government in the adminstration of field sobriety tests. There is absolutely no doubt that judges will be forced to exclude this crucial evidence in many, many DUI cases. Prosecutors rely on field sobriety testing as evidence that a motorist is impaired and without this evidence, proving their cases will be next to impossible.

For more information, please contact attorney Brad Koffel at 614-481-4480. Additional information may be found at www.buckeyedui.com.

October 1, 1999

Koffel & Jump, Attorneys at Law

Sweeping DUI legislation is routing its way through the General Assembly. Every practitioner should be aware of pending legislation as it relates to this offense-as Drunk Driving (DUI, OMVI, OUI) is the #1 non-petty offense committed in the United States. DUI can no longer be thought of as simply a traffic offense.

Will this be the Law in 2000?

Motorists who REFUSE a requested blood, breath, or urine test will LOSE their constitutionally protected right of the Presumption of Innocence.

A 1st OFFENDER who tests over .170% will have a MANDATORY 3 day jail sentence PLUS a mandatory 3 day alcohol education program.

The VEHICLE of a 3rd OFFENDER will be FORFEITED to the State, EVEN IF somebody else owns the vehicle.

Ohio's LEGAL LIMIT could be LOWERED to .08%.

All of these bills are pending in the General Assembly right now. The most likely scenario is that the .170% bill will pass before any others. In my opinion, it is unlikely that the .08% will pass any time soon.

ATTORNEY: TESTS, NOT LIMIT, REAL DRUNKEN-DRIVING ISSUE

Tuesday, March 10, 1998
NEWS 03C

By By Tim Doulin
Dispatch Staff Reporter

The reliability of blood-alcohol tests is a bigger issue than if Congress passes a federal mandate requiring states to adopt a 0.08 blood-alcohol limit to define drunken driving, some local lawyers say.

Attorney Brad Koffel said he believes the standardized field sobriety tests used by law enforcement officers would have to be revamped if the blood-alcohol limit were lowered. The tests are an investigative tool officers use to determine whether a motorist will test over the current legal limit.

''There are actual percentages attributed to each of the field sobriety tests as to the odds a person will test over 0.10,'' Koffel said. ''The problem with lowering the standard to 0.08 is the main investigative tool is not designed to test for the very subtle impairment, if any, at that level. It is a 0.10 tool.''

Lowering the limit will issue a ''marching order to patrol officers to basically arrest people who have an odor of alcohol on their breath,'' Koffel said.

The State Highway Patrol says that the standardized sobriety tests would not have to be changed.

''Your outward signs of impairment are not indicative of your motor skills,'' Born said. ''And those tests are to test your motor skills to see if you can do two or three things at once.''

''It is still the same old story, until you can take shots at the machine, it doesn't really matter what they say the test is,'' lawyer Sam Shamansky said. ''You're guilty before you ever get in the courtroom. So I don't see lowering the level as having a major impact, defensewise.''

Shamansky and his law partner, William Meeks, filed a lawsuit in U.S. District Court last year on behalf of a North Side man challenging the method used in Ohio to administer breath tests to suspected drunken drivers. That case is pending.

The blood-alcohol limit is 0.10 in Ohio and many other states. The federal government proposes lowering that limit and would penalize states that don't by taking away a portion of their federal highway construction money.

Defendants and their attorneys are prohibited from challenging the scientific accuracy of a breath test if the machine is working properly. Shamansky and other local lawyers say the test results are suspect and that those accused of drunken driving should be allowed to present defense experts to challenge the machine's reliability.

''You can do it in a drug case, a murder case, a counterfeiting case. The anthrax possession case where they have relied on scientific evidence to establish that it wasn't in fact the virus but the antidote,'' Shamansky said. ''Without the ability to challenge the scientific basis, you never know if it is correct or not.''

Those who support a lower blood-alcohol limit, including Mothers Against Drunk Driving, say it would save 500 to 600 lives a year, nationwide. In Ohio, from 1983 to 1996, 195 of 6,392 drinking drivers at fault in fatal crashes had a blood-alcohol level between 0.08 and 0.10, the State Highway Patrol said.

Although some attorneys and court officials believe lowering the limit would cause a sharp increase in the number of drunken-driving cases in the courts, the patrol and others believe there will be little effect.

The patrol believes the lower blood-alcohol limit will serve as a deterrent.

''Other states that have a 0.08 limit who we have talked to indicate the DUI arrests don't go up or they don't go up significantly, and in some cases they have dropped,'' Lt. John Born said.

The patrol credits the state's tougher penalties for the steady decrease in the patrol's drunken driving arrests. The patrol arrested about 23,000 statewide last year for driving under the influence of alcohol, down from 27,570 in 1994.

In Franklin County Municipal Court, there were 5,264 OMVI cases in 1997, up from 5,153 the prior year.

Judge Charles A. Schneider, the court's administrative judge, also doesn't believe lowering the level would have a huge impact in the number of cases. He said the court doesn't see many cases with a test result under 0.10.

''You might say that's because people who test below 0.10 aren't charged with anything, but that is not the case,'' Schneider said. ''A person is not asked to take the test until they are already under arrest for OMVI.''

Law enforcement officers generally file the OMVI charge based on a driving violation, outward signs of intoxication - such as slurred speech and bloodshot eyes - and failure to pass standardized field sobriety tests. Those who then take a breath test and are over 0.10 are charged with a second OMVI.

However, those convicted of OMVI are sentenced only on one charge.

BEFORE YOU THROW THAT PARTY: Think About the Potential Liability

--Brad Koffel, Esq.
The Memorial Day holiday kicks off the summer party season. Suburban backyards will be clouded with a barbecue grill haze; pools will be crowded with splashing kids and grownups. And, more often than not, coolers will be filled with icy cans and bottles of adult beverages.

Can the party host dive into the fun without considering potential hazards, risks, and liabilities? The prudent answer is an unequivocal "no".

No Liability Under Prior Law

Ohio has long followed the rule of the majority of jurisdictions, holding that it was not a tort to either sell or give intoxicating liquor to ordinary able-bodied persons. This rule was based upon the premise that it was the consumption rather than the sale or distribution of liquor that caused intoxication. In this view, the mere providing of alcoholic beverages was a remote cause at best.

But that rule has not been absolute. The enactment of the Dram Shop Act provided injured persons an opportunity to recover from a liquor permit holder that had sold alcohol to an intoxicated tortfeasor in violation of an order of the department of liquor control. Another statute provides for liability when a permit holder knowingly sells liquor to a noticeably intoxicated person, and that person proximately causes injury or death to another.

The law distinguished between the liability of a permit holder and a social host in serving intoxicating beverages. In Settlemyer v. Wilmington Veterans Post No. 49, American Legion, Inc. the Ohio Supreme Court explained why social hosts are not held to the same level of care as permit holders for serving intoxicating beverages:

the commercial proprietor has a proprietary interest and profit motive, and should be expected to exercise greater supervision than in the (non-commercial) social setting. Moreover, a person in the business of selling and serving alcohol is usually better organized to control patrons, and has the financial wherewithal to do so. It also is reasonable to conclude that by virtue of its experience, the commercial proprietor is more familiar with its customers and their habits and capacities.

An Exception-Liability for Sale to Minors

In 1988, the Ohio Supreme Court carved out an exception to non-liability for social hosts in Mitseff v. Wheeler. The court determined that social hosts may be held civilly liable for damages to third persons injured as a result of the actions of an intoxicated minor. In Mitseff, Douglas Wheeler furnished beer to seventeen-year-old Jennifer Johnson. Johnson left Wheeler's residence and went to a bar where she drank more alcohol. Later, Johnson was involved in an automobile accident that took the life of Kathryn Mitseff.

The pertinent issue was whether Wheeler could be held civilly liable for furnishing intoxicating beverages to a minor during the course of the evening. The court found that "[t]he statute created a duty that appellee, because of Johnson's age, refrain from furnishing Johnson with alcohol." The court focused on the fact that Wheeler had provided alcohol to someone who was not an adult guest, an act that was prohibited by the statute.

The law continues to change. A social host can now be held liable for injuries to a third person caused by the negligence of a minor to whom the social host furnished alcohol. R.C. 4301.69 creates a duty for social hosts to refrain from furnishing alcohol to a person under the legal drinking age. Violation of that duty is negligence per se. It is also a criminal offense, punishable by a fine of $500-1000, and a six month jail term.

Last year, the Ohio Supreme Court refined the standard in this area in Lesnau v. Andate Enterprises, Inc. Lesnau involved the sale of liquor to a minor by a liquor permit holder. The minor represented that he was 21 at the time of the sale, but produced no identification. The minor was later involved in a motor vehicle accident, which killed another person.

The trial court dismissed the wrongful death action that followed, finding that there could be no liability in the absence of an allegation that the permit holder had actual knowledge that the purchaser was a minor. The appellate court affirmed, but the Supreme Court reversed.

The Court affirmed the general proposition that there can be no liability without actual knowledge by the permit holder. But in the Court's view, cases involving minors are different, and the actual knowledge standard is inapplicable. Instead, the Court applied a "know or have reason to know" standard.

Expanded Liability in the Future?

Lesnau may well be the beginning of an expansion of liability for those who supply alcohol, in either the commercial or social context. Recent years have witnessed a growing legislative and judicial awareness of the dangers of alcohol abuse, particularly on the public highways. Lawmakers see that more than 15,000 died in alcohol-related traffic crashes in the year 2000 -- an average of one every 36 minutes. Each year, more than one million others are injured.

The General Assembly responded by amending Ohio's impaired driving statutes no fewer than four times since 1990, seeking to streamline prosecution and toughen penalties. We can anticipate further changes, given a national movement toward criminalizing driving with a blood alcohol content of no more than .08.

Courts are likewise acutely aware of these alarming statistics and cannot be immune to what they represent. While the courts will probably continue to distinguish commercial vendors from social hosts, the historic immunity from liability may disintegrate, particularly in cases involving minors.

Minimizing the Risks

What can hosts do to protect their guests-and themselves? Prudence is all-important. The Mothers Against Drunk Driving website contains sound recommendations for party givers. Among them:

Never serve alcohol to someone under the legal drinking age, and never ask children to serve alcohol at parties. When in doubt, check identification. Remember that this can be a criminal violation. And if civil liability results, your own insurance company will probably argue that they have no duty to provide coverage for liability arising from criminal acts.
Don't let guests mix their own drinks. Choosing a reliable "bartender" will help you keep track of the size and number of drinks that guests consume.
Never force a drink on a guest!!!
Close the bar well before the party ends. Consider serving a dessert treat with coffee-but remember, only time sobers someone who has been drinking.
If some of your guests have had too much to drink, drive them home, arrange for a ride with another guest who is sober, call a taxi, or invite them to stay over.

Selected as one of the Best Lawyers in America (2001-2002). A singular honor bestowed upon 1% of the attorneys in the United States as selected by other attorneys every other year.

For Immediate Release-Columbus, OH
January 15, 2001

Best Lawyers in America ® just announced that Columbus attorney Bradley P. Koffel has been selected by other attorneys as one of the best attorneys in the United States in the field of Criminal Defense for 2001-2002.

Published biennially since 1983, The Best Lawyers in America is widely regarded as the preeminent referral guide to the legal profession in the United States. The Best Lawyers lists, representing 27 specialties in all 50 states and Washington, DC, are compiled through an exhaustive peer-review survey in which thousands of the top lawyers in the U.S. confidentially evaluate their professional peers. The current, 9th edition of Best Lawyers (2001-2002), is based on more than 350,000 detailed evaluations of lawyers by other lawyers.

This unique referral guide is subscribed to by more than 4,000 of the leading law firms in the U.S. and abroad, and by more than 1,000 of the world's largest corporations. For almost twenty years, they have used Best Lawyers to locate counsel in unfamiliar jurisdictions for major legal matters.

Because lawyers are not required or allowed to pay a fee to be listed, Best Lawyers has gained the respect of the legal profession, the media, and clients as the most reliable, unbiased source of legal referrals anywhere. It has received from presidents of the American Bar Association, been frequently featured in the U.S. media and excerpted in more than 50 major metropolitan newspapers and magazines.

The New York Times claims, "Who are the best litigators in Illinois? Or the best bankruptcy specialists in Utah? Two Harvard Law School graduates... have found out, and have compiled their findings in a book titled -- no beating around the bush here -- "The Best Lawyers in America."

Koffel, 33, is one of the youngest attorneys listed in Best Lawyers. His law firm, Koffel & Jump, located in Upper Arlington, Ohio, has quickly been recognized as a leader in DUI and Criminal Defense law in Ohio. Koffel cites the success of his firm to hiring very talented attorneys and staff while providing upscale professional assistance to his clients.

BREATH TEST RESULTS BAD, JUDGE SAYS

DRUNKEN DRIVING CASE TO GO ON WITHOUT FINDINGS

Friday, July 12, 1996
NEWS LOCAL & NATIONAL 01B

By By Randall Edwards
Dispatch Staff Reporter

A blood-alcohol breath test can't be used as evidence in a drunken driving case in Franklin County because the Ohio Department of Health used sloppy science to analyze a solution used to calibrate breath-testing machines, a judge ruled yesterday.

The ruling, by Franklin County Municipal Court Judge Anne Taylor, said it was ''an abuse of discretion'' for the health department to approve a batch of the alcohol and water solution in 1993. Calibration is achieved by running the solution through the breath-testing machines regularly to make sure the machines accurately record the amount of alcohol in a motorist's breath.

''Judges and lawyers all over the state have been holding up cases waiting to see what Judge Taylor was going to do,'' said defense lawyer Bradley Koffel. ''This decision is going to be faxed around the state, and it is going to open a lot of eyes.''

Taylor made the ruling in a case involving Vincent Workman Jr., a former Ohio State University football player who was charged with drunken driving in May 1995.

The decision could influence hundreds of other cases throughout the state, said Christopher Cicero, a defense attorney who represents Workman.

''I think what we've done is show that there was a lack of trustworthiness in the way these solutions were certified,'' Cicero said.

State law requires that the health department analyze samples of each new batch of the calibration solution before certifying to police departments that the solution has the proper mixture of water and alcohol.

In this case, the health department's lab ''did not have any written protocol, had conflicting standards and a lack of rigorous scientific review,'' Taylor wrote in her 19-page decision.

The fight over the health department's testing procedures already has led to the resignation of the lab's director, Leonard Porter, and a short-lived ban on breath testing throughout the state. Porter resigned after writing a memo in January in which he said 19 batches of solution might be at a different mixture than certified.

Porter approved this 1993 batch of solution after it was tested twice - a first test was rejected because of sloppy technical work, Taylor said.

But when the validity of the test was questioned, it took two scientists from outside the department of health five different tries to validate the solution, and that was done only after excluding much of the health department's raw data, Taylor said.

The results of the two scientists, who were appointed by Health Director Peter Somani to review the testing procedures after Porter's resignation, were ''sanitized'' before they were presented to the public, Taylor wrote.

Lawyers for the health department had not reviewed the decision late yesterday and could not comment, said department spokesman Randy Hertzer.

Assistant Columbus City Attorney Rob Levering, who is prosecuting the case, said he has not decided whether the city will appeal. Regardless of that decision, the city will continue to prosecute Workman, who now plays for the Indianapolis Colts. Workman's trial is scheduled for August.

Levering said he was disappointed by Taylor's decision, and he defended the health department.

''We believe that everything they did was done in a scientifically approved manner,'' he said. Even if the health department's testing was not valid, he said, independent tests by a private lab and the State Highway Patrol showed that the solution was good.

Levering said he is glad Taylor rejected two other claims by the defense: that the certificate of approval was invalid because it was not signed personally by Somani and that the whole process is invalid because the health department did not specify expiration dates.

The law allows Somani to delegate his authority, she said, and the director has the right to determine policy on expiration dates.

If Taylor had ruled differently, it could have raised questions about 18 other batches of solution, and challenged the evidence in thousands of cases.

There probably are not many pending cases in which this 1993 batch was used to calibrate, Levering said.

Other defense attorneys disagreed with Levering's assessment, saying similar flaws probably can be found in the other 18 batches.

At least five judges have ruled on similar motions - three who suppressed the test and two who upheld it - but Taylor is the first in Franklin County. She also is the first to thoroughly review health department procedures and the raw data used to certify the solutions.

Driver in fatal crash to support victim's daughter
Man's best friend killed in March crash

LEBANON | A recent Ohio State University graduate headed to jail for killing his best friend in an alcohol-related car crash has promised to financially support the man's 9-year-old daughter, including paying for her college education.

Warren County Common Pleas Judge James Flannery on Friday sentenced John C. Allen, 23, of Gahanna to six months in jail, suspended his driver's license for five years and ordered him to pay $12,000 in expenses for the funeral of his best friend, Christopher S. Matthew, 27, of Clearcreek Twp. Allen had pleaded guilty to aggravated vehicular homicide.

Defense Attorney Bradley P. Koffel called the sentence "remarkable and extremely fair" in light of the seriousness of the charges. "All across Ohio and the United States sentences for this type of tragedy usually involve a substantial prison sentence. I believe the Judge had tremendous courage to see that my client had taken full responsibility for his poor judgment and that prison would not have solved anything."

Allen, a computer specialist with Huntington Banks in Columbus, will be allowed to work while serving the jail term in Franklin County.

"I'm embarrassed and ashamed of myself for causing the death of my best friend," Allen said in court after turning toward Matthew's family and friends.

"I'm the reason a little girl will never again have a daddy to tuck her in at night," said Allen, who has signed a contract to support Matthew's daughter until she turns 18, as well as pay her college expenses.

On March 22, Matthew died after Allen's new Subaru, northbound about 5 a.m. on Ohio 48 at more than 90 mph, failed to negotiate a sharp curve and struck a stop sign and two concrete walls in front of a cemetery, according to reports. Allen told state troopers that he and Matthew had been partying in the Oregon District in Dayton and at friends' homes.

Matthew, an engineer with Lockheed Martin in Fairborn, was pronounced dead at the scene.

On Friday, neither of his parents, who traveled from Illinois for the hearing, urged the judge to send Allen to prison.

Phyllis Matthew urged Flannery to order long-term alcohol treatment for Allen to prevent him from driving drunk again.

Stephen Matthew called for greater education and public awareness of the devastation caused by drunken drivers, while headlines focus on smaller numbers of soldiers dying in Iraq.

Afterward, Allen's priest and mother begged Flannery not to send him to prison, so he can continue to provide for his daughter, as well as Matthew's. Allen also hopes to prevent OSU freshmen from drinking and driving by sharing with them how he killed his best friend and devastated his and others' lives.

"Just like Chris, anything he made his mind up to do, he accomplished," Allen's mother, Sandy, said.

DRUGGED DRIVING HARD TO PROVE
Police, prosecutors say gathering evidence is first problem in such cases

Thursday, December 26, 2002
NEWS 01C

By Dean Narciso
THE COLUMBUS DISPATCH

The wild ride took the 20-year-old halfway around the Outerbelt as she weaved through rush-hour traffic, speeding up and slowing to a crawl.

When police finally caught up to the car last month and pulled over the driver near I-670 on the North Side, they found her nude. She refused to put on clothes found in her rental car.

Her actions were "spacey,'' said Sgt. Larry Ferguson of the Columbus Division of Police.

Comments the woman made indicated that she had been using illegal drugs, said a Mifflin Township paramedic, who declined to be named or provide details.

On the way to Grant Medical Center, the woman was given Narcan, a drug that helps stabilize possible overdose victims. The woman was treated and released.

Police have said that charges against the woman could have included disobeying an officer, failure to control a vehicle or driving under the influence of drugs.

But she has not been charged.

Neither blood nor urine samples were requested by police, said Columbus Police Lt. Jeffrey Blackwell, who is familiar with the case.

A close relative said the woman told her family that she had a bad reaction to cold medication.

The case underscores the problem of "drugged'' drivers and the difficulty in prosecuting them.

Inside a zero-degree vault at the State Highway Patrol's crime lab off Alum Creek Drive, two years' worth of blood and urine samples are stored -- more than 5,000 vials -- that were taken from motorists involved in traffic stops or crashes.

"Almost 60 percent of the urine cases were testing positive for marijuana,'' said Paul Boggs, crime-lab director.

Though law-enforcement agencies across the nation have cracked down on drunken drivers, building a case against a drugged driver is much more daunting.

The challenge begins on the street and in the hospitals.

"Most doctors or nurses will not draw blood samples for us,'' one veteran Columbus police sergeant, who asked that his name not be used, said recently.

"We get very little cooperation.''

But Mark Hopkins, spokesman for Grant Medical Center and Riverside Methodist Hospital, said it's up to police to ask.

Doctors, he said, are required by law to draw any human fluid samples that are requested by law-enforcement authorities, and routinely comply.

National drug experts say police have little incentive to request samples because of the difficulty they encounter in securing convictions.

"If the police officer knows that the prosecutors aren't going to take on cases because it's difficult to get a conviction, then they're not going to look for drugs on the front lines. It's kind of a negative spiral,'' said J. Michael Walsh, head of the Walsh Group, a research firm based in Maryland that last month launched a nationwide campaign for tougher laws against those who drive while high.

Walsh found that, during a 12-month period last year, about 9 million Americans had driven within two hours of using marijuana or cocaine.

Walsh's results noted that most driving-under-the-influence laws, including Ohio's, require prosecutors to prove that an illegal drug caused the impaired driving -- "a difficult task for a scientist and even more difficult for a prosecutor.''

Eight states now have "per-se'' statutes that land a driver in jail for the "mere presence'' of prohibited drugs in the bloodstream.

Blackwell questions why Columbus officers didn't request blood tests for the woman in the Nov. 21 Outerbelt case.

"I think it's real valid that we explore all options when you have a potentially impaired driver,'' he said.

Making that evidence stick is the challenge.

"Putting a number on how much of a controlled substance in your system makes you a danger . . . is a difficult and possibly unobtainable measure,'' said Lt. Gary Lewis, spokesman for the State Highway Patrol.

His agency filed charges on Dec. 13 against a man accused of hitting one of its own.

Trooper Leonard Gray was seriously injured when he was hit by a car on Dec. 11 in Hocking County. The patrol charged Ronald Hamrick with driving under the influence of drugs.

"The difficulty is usually in being able to quantify the drugs like the alcohol,'' said Columbus City Prosecutor Steve McIntosh.

In Ohio, a motorist is considered to be driving drunk with a 0.10 percent blood-alcohol content or 0.13 percent urine-alcohol content.

"Anytime we get a case where it's drugs only . . . it's a matter of what will our expert be able to testify, to be able to relate the amount of drugs in the system to impairment,'' McIntosh said. "Anytime you have to bring the expert in, it's another hurdle.''

McIntosh said the per-se laws in states such as Indiana and Minnesota would streamline an inefficient system.

But lawyer Brad Koffel, whose firm Koffel and Jump of Columbus handles about 500 to 600 DUI cases statewide a year, thinks otherwise.

He said that having more drugged-driving charges would slow an already overloaded court docket.

"It would just be a nightmare. There are a tremendous amount of evidentiary hurdles just to get the (bodily-fluid) samples admitted into court.

"And the field tools that the police officers would need are ludicrous. They're taking pupil size, blood pressure, respiratory rates. I think it unrealistically asks police officers to become scientists, triage nurses, almost doctors.''

Todd Barstow, president of the Central Ohio Criminal Defense Lawyers Association, agreed.

"Any police officer with a high-school education can operate a breath machine,'' Barstow said. "But thank God we don't have state troopers armed with needles to suck blood from people being stopped on the roadside.''

Koffel also is concerned that innocent people could be falsely accused under such laws.

He recalled a client who was stopped by police in Chillicothe two years ago for driving erratically and colliding with a truck.

The driver agreed to a urine test, and marijuana was detected. Indeed, the man had smoked marijuana -- but nearly a month before the crash.

The man, a diabetic, was acquitted when it was shown that a missed insulin shot that morning had caused him to crash.

James Ferguson, chief toxicologist for the Franklin County coroner's office since 1977, knows better than most about how challenging such cases are.

He gets about 100 requests a year from lawyers to be an expert witness in cases involving clients driving while under the influence of drugs.

Ferguson is able to screen for more than 500 drugs at his King Avenue laboratory. But he limits DUI tests "to drugs posing the greatest risk of crashes.'' Eighty-five percent of those involve cocaine or marijuana, he said.

Educating the public to the dangers of drugs and driving is a main focus of the nation's drug czar, John Walters, who estimates that 10 percent to 20 percent of motorists involved in crashes are under the influence of illegal drugs.

Locally, at least among experts, the issue is a growing concern.

"There's an awful lot of drugged drivers out there,'' Ferguson said. "I know firsthand that driving drugged is a serious problem. But I also know that finding solutions for it is a major problem.''

dnarciso@dispatch.com

Tort Reform hosts trial lawyers versus insurance companies; Democrats versus Republicans; and, even the Ohio Supreme Court versus the General Assembly. Hundreds of thousands of dollars are spent on judicial campaigns, house seats, and even congressional races in an effort to protect the rights of consumers and a corresponding effort to limit liability of goods and service providers. The currency of politics permeates all aspects of civil tort law.

However, not even Tort Reform can compare to the awkward, unabated sprint of legislative amendments to DUI in the 1990's. Since 1993, no other area of law has lay helpless on the stainless steel surgical table of the Ohio General Assembly like DUI. There are no PAC's with coffers at the ready to protect the rights of motorists accused of DUI. For a legislator to utter words affording statutory protection or recognition of constitutional rights to the accused drunken driver is akin to political hara-kiri. The penalties keep getting ratcheted higher and stiffer. In other words, the Ohio General Assembly has hung, drawn, and quartered the DUI statutes and administrative regulations to a point of confusion that the Federal Sentencing Guidelines read like a Harry Potter book.

If the General Assembly is the 8 cylinder engine of statutory change, then our 12 Appellate Districts and Ohio Supreme Court are the providers of the silky smooth motor oil that keep it free of 4th, 5th, 6th, and 14th Amendment breakdowns. One need look no further than on the spot license suspensions, pre-trial seizures of vehicles, expanded "look back" periods, the birth of "Felony DUI", prior convictions admissible against a felony defendant at trial, the creation of a "Super Per Se" offense, constitutional traffic stops based upon "anonymous tips", and the continued inability to challenge the general reliability of chemical tests of the accused are all gifts bestowed upon the DUI practitioner by the legislature and courts just in the last 7 years.

The authors of Ohio Driving Under the Influence Law, The Honorable Mark Painter (Hamilton County Court of Appeals) and James Looker (prominent DUI/Criminal Defense attorney in Cincinnati), wrote the first edition while the DUI laws were just small snowballs on a hillside gently rolling and getting a little bigger with each revolution. Now, Judge Painter and Jim Looker are attempting to catch their breath while looking back at the legislative and appellate court avalanche of the past several years. Their work is no small feat. Their product is an excellent quick reference guide to the many issues facing the DUI practitioner, prosecutor and trial judge.

Due to a debilitating stroke in September 1999, Jim Looker has been unable to practice law. Presumably, Judge Painter authored this edition as evidenced by his Preface and Acknowledgments. This edition provides a review of case law developments as well as all of the legislative changes through June 30, 2000.

I have used "Ohio Driving Under the Influence Law" in my practice regularly since 1993 and the framework has remained primarily the same. There are 22 chapters ranging from the basics (elements of the offense) to the more complex issues (Ohio Department of Health Testing Regulations). Selected provisions of the Ohio Revised Code, Ohio Administrative Code, and Traffic Rules that come into play in DUI cases find their way into the back of the book. Perhaps the book's best point can also be viewed as its biggest drawback: the treatise provides an excellent synopsis of current DUI case law and statutes without providing any noticeable bias to the prosecution or defense. It is truly a recantation of holdings and black letter law. Therein lies my chief complaint. As a DUI defense attorney, I would like to see the book expanded to include more pre-trial suppression strategy, evidentiary issues and litigation points, forensic aspects of chemical testing, information concerning breath testing machines, and more attention to issues in other states that may have cross-over applicability to Ohio DUI law. This information could certainly aid the reader in understanding and appreciating defense theories and scientific evidence.

Unfortunately, my biggest criticism of the book is lost on the obvious fact that West Publishing commissioned the authors to present the status of the law in Ohio, not to write, "Defending the Drinking Driver in Ohio". I do note that the authors insert "Critiques" and "Recommended Practice" pointers throughout the book. For example, the authors refer to the 1994 Ohio Supreme Court decision in State v. Gill (defining "operation") as "judicial legislating by the Court on the issue of operation". In fact, the authors inject their own collective opinion as to the issue of operation and feel that the Ohio Supreme Court has failed to put the motoring public on notice as to when one is "operating a vehicle" and when one is not. The authors boldly state, "If the concept of 'operation' has eluded precise determination by lawyers and trial and appellate courts in this state, how can the general public be expected to understand exactly what constitutes 'operation'"?

Additionally, form suppression motions intended for the defense attorney are included at the end of Chapter 11. This suggests that the book can evolve some more and explain some of the issues I mention above while preserving its objectivity and careful balance.

If the book is intended to be a reference treatise, the format can be difficult to use to locate an issue. A perfect example would be the need to look up the admissibility of a breath test. The reader must weave through Chapter 9 "Testing Regulations, as well as certain parts in Chapter 13 "Documentary Evidence", Chapter 15 "Motion to Dismiss and Motion in Limine", meanwhile needing to look at Chapter 3 "Charging the Offense" and Chapter 1 "Elements of the Offense". Each of these chapters have some salient issues relevant to the admissibility of a breath test. Consolidation of this issue would greatly enhance the utility of the book.

Also, the authors spend a considerable amount of time explaining the case history of certain issues before finally stating the current status of the issue. Often the reader gets caught up in the holding of a particular line of cases that seems to support his/her argument only to find out that the Ohio Supreme Court ultimately overruled that line of cases.

The best part of the book is the unmistakable fact that the authors have completely summarized some of the most confusing legislative changes and case law developments in the last decade. You can look up a code section or case in the Appendix to see each and every page in the book addressing it. The reader can freely cite to specific cases that address very, very fine issues such as whether or not crossing the lane marking one time is sufficient to justify a traffic stop. The authors have combed a plethora of key unreported decisions that would otherwise go unnoticed by the practitioner. Even a smattering of interesting municipal court decisions can be found referenced in this book!

The practitioner will find this book extremely useful in court and preparing for a DUI case. Ultimately, you will find yourself staring at an issue that seems so rare and case-specific that your stomach churns at the prospect of having to research it either on-line or CD-ROM. In all likelihood, you will find this issue somewhere in this book with case cites to boot. I have personally reached for this book in the middle of a hearing and trial only to have it give me exactly what I need in less than 5 minutes.

Perhaps the best review I can give this book is to share a frequent experience I have in my practice. Many times a disagreement over an issue will arise with a prosecutor. I can produce "Ohio Driving Under the Influence Law" to solve the disagreement as it is widely accepted as final authority-even to many trial judges. If you are involved with or anticipate being involved in a DUI case, you need this book!

A Key Employee Under Arrest-Now What do you Do?
A VERY COMMON (QUIET) EMPLOYMENT PROBLEM

You just started a long-overdue meeting with one of your business partners and your reception intercoms you. One of your company vans was just involved in a two-car accident on I-70 near Brice Road. You learn that one of your employees was driving it after stopping at a local a bar. Unfortunately, he didn't stop after striking the other vehicle, but drove away. Now, 30 minutes later, he's caught, arrested, and charged with a laundry list of criminal offenses: DUI, hit-skip, driving under suspension, failure to control. Your employee is on his way to the Franklin County Jail. Your company van, tools and equipment within the van are impounded at the Columbus Police impound lot. Now what?

Thoughts race through your mind-is anyone hurt or worse? We paid the premium renewal for the automobile insurance, didn't we? How do we get the van and equipment back? Are we supposed to help get Bob out of jail or is his family? Who do I call first-our insurance agent? Corporate counsel? The Police? Do I know any business owner-friend who has been through this before? What do we do?

Unbelievable as it may seem, this scenario is not too uncommon. Every week a central Ohio business owner or one of its top executives must face the inevitable-one of its employees spent the weekend in jail. It's Monday morning, the employee has taken the day off, asked to take Friday off for court, and winds up being very unproductive while the criminal case lingers in one of the busiest courts in Ohio-either the Franklin County Municipal Court or the Franklin County Court of Common Pleas. How long does the case last? Try 3 - 6 months depending upon the nature of the charges.

What about the company vehicle that is now impounded? Most local judges will permit the company vehicle to be returned to the company on the following conditions: proof of corporate ownership and current auto insurance must be shown, payment of tow and impound fees; and, an understanding that the employee is not permitted to operate it if he or she triggered a license suspension as a result of their arrest.

STATISTICALLY SPEAKING, PLAN ON FACING THIS ONE DAY

If you think your company, no matter how small, will never have to deal with an employee running afoul of the law, then you might want to read on. One out of 3 employees reports known illegal drug activity in the workplace. Of equal concern is that nearly 15% of ALL employees report heavy drinking during personal time. Of course, alcohol and drug use spills over to the workplace-fatigue, tardiness, absenteeism, accidents, injuries, and lack of productivity. This use and abuse will eventually result in an arrest.

GET A REFERRAL TO A CRIMINAL DEFENSE ATTORNEY

Now, as a business executive dealing with the arrest of an employee, what do you do? Our firm sees these cases daily and we advise business owners and employers in these scenarios frequently.

First, call your corporate counsel or a friend who is an attorney and get a referral for a good criminal defense attorney. If the employee is in jail, the defense attorney can assess what measures need to be taken to get a bond on the employee to get him or her released from jail.

Once the employee is released, he or she is going to probably be requesting some time off from work-to meet the defense attorney, to talk to family, to go to court-all within the first 2 weeks! It is suggested that you permit the employee to attend to these immediate needs without prying too much into the allegations. Once your employee has had a chance to consult with counsel, he or she will be much better equipped to tell you what happened and what they will need from you (i.e. time off to go to court).

CONSULT WITH CORPORATE COUNSEL

Depending upon the nature of the allegations, you should consult your corporate counsel to discuss foreseeable consequences of the employee's alleged criminal conduct. If the employee committed the crime while in the scope and course of employment, you will want to notify your corporate attorney of this fact. This is equally true if the incident occurred "after-hours" but the employee was leaving a company function.

SPEAK TO THE EMPLOYEE

I have found that many times an employee will not tell a manager or boss of an arrest unless they have to. If you hear rumors around the office and the employee is under your direction, ask the employee to meet you and discuss the veracity of the rumors. Be very careful not to be judgmental, critical, or threatening. Do not make any promises, either. Just be a listener. Then consult with corporate counsel to determine the best route to take internally. Should the employee be disciplined while the case is pending? Does the employee have rights under an employment agreement, state or federal law? As an employer, completely understand the implications of the Americans with Disabilities Act ("ADA") as it relates to alcohol, substances, and treatment.

SPEAK TO THE CRIMINAL DEFENSE ATTORNEY

I highly recommend that you speak directly with your employee's defense attorney to try and get a forecast of how the case may proceed. Of course, the defense attorney will not provide any information to you without the client's express consent. Ask your employee if is acceptable to him or her to arrange a conference call between you, the client, and the attorney. Ask the tough questions that need answers. When will the employee be able to drive for the company again? Can the company be charged criminally for the actions of its employee? What is the likelihood of jail? How many more days off for court will the client need?

ADDRESS IT BEFORE IT BECOMES A LEGAL PROBLEM

If you have not faced this employee - arrest scenario yet, you should understand the myriad of issues that spring up without warning. Warning signs of high-risk substance use are as follows: marijuana users may have bloodshot or glassy eyes and a persistent cough. Cocaine users display increased energy and enthusiasm early in their drug involvement. Later they may be subject to extreme mood swings and can become paranoid or delusional. Alcohol abusers find it hard to conceal morning-after hangovers. Their productivity declines, and they may show signs of physical deterioration.

Practically speaking, you won't have much time to "get up to speed" on these issues in light of the fact arrests are sudden, unplanned, and create a tremendous sense of urgency.

Bradley P. Koffel
Koffel & Jump
2130 Arlington Avenue
Upper Arlington, OH 43221
Phone: 614-481-4480
FAX: 614-487-2314
E-mail: bpk@kjlaws.com

Brad Koffel is a partner in the law firm Koffel & Jump. He concentrates his practice in the areas of Criminal Defense and DUI Defense. He is recognized by Best Lawyers in America Consumer Guide (2001-2002), for Criminal / DUI Defense. He is the DUI Defense state seminar chairman for the Ohio Association of Criminal Defense Lawyers.

Koffel & Jump consists of 6 attorneys comprising two practice groups: Criminal / DUI Defense and Consumer Bankruptcy. The Firm handles hundreds of criminal / DUI cases in Central Ohio and nearly 1,500 consumer bankruptcy cases annually.

The mission of Koffel & Jump is provide a premium level of personal representation to individuals in Ohio who are experiencing the stress of a recent arrest or are in need of federal bankruptcy protection.

THE WAR AGAINST DUI IS IN ITS 18TH YEAR

The Ohio General Assembly continues its assault on DUI creating even more confusing legislation and harsher penalties based upon suspect scientific evidence. Effective May 17, 2000, a mandatory jail sentence will be imposed for any DUI offenders who register a BAC over .170% by breath and blood and .238% by urine. In essence, there are now several BAC limits: "Regular DUI": .100% for breath and blood and .140% for urine; and the "Super DUI" .170% for breath and blood, and .238% for urine.

For historical purposes, it all started on March 16, 1983, the day S.B. 432 became law. DUI was no longer just another traffic offense. There were three significant changes: testing over the legal limit became a separate offense; license suspensions were "on-the-spot"; and, enhanced penalties for multiple offenders were triggered. Simultaneously, on the national level, federal grants were buried in highway legislation, task forces were created to curb drunk driving, and through the noble efforts of MADD, public awareness was aroused.

By the end of the 1980's, empirical data suggested that the new laws were not curbing drunk driving. The answer was even tougher legislation. On July 25, 1990, juvenile motorists and commercial truck drivers received lower legal limits. DUI penalties became stiffer once again.

Only three years passed before more change was needed. Adopting the tactics of the federal government on its war against drugs, Ohio passed legislation in 1993 authorizing pre-trial seizure of vehicles and license plates as well as forfeiture of vehicles in the most serious DUI cases.

Three years later, in 1996, Ohio joined several other states in elevating a 4th offense DUI to the felony level (currently 4th conviction within the last 6 years). The 1996 legislation expanded the "look back" period from 5 years to 6 years thereby widening the net for "repeat offenders". "Out-of-state" DUI convictions and juvenile adjudications were specifically included and counted as "prior convictions" if they occurred within with six years of the instant offense.

The fifth major enhancement in 18 years became effective on May 17, 2000. The worst drunk driver can now be sentenced to 5 years in prison as a 3rd degree felony. Perhaps the most important piece of information all attorneys should be aware is the fact that a 1st offender can now face a mandatory jail sentence. A new legal limit ("Super Drunk") is among us: 170% measured by breath or blood or .238% measured by urine.

As the following chart illustrates, having a concentration of alcohol in excess of the new legal limit will trigger a mandatory jail term based upon the defendant's prior DUI conviction record.

1st Offense DUI Mandatory 6 days in Jail:
(3 days can be served at an Alcohol Program, but the other 3 must be incarceration)

2nd Offense DUI Mandatory 20 days in Jail

3rd Offense DUI Mandatory 60 days in Jail

4th Offense DUI Mandatory 120 days in Jail

The above references a 6 year look back period (i.e. a 1st offense DUI within the past 6 years calculated date of conviction to date of offense).

Gone are the days of pleading to the DUI on a 1st offense and receiving the 3 day program if the defendant tested over .170%. It is incumbent upon every attorney who may handle a DUI to be acutely aware of the dramatic sentencing change in Ohio's DUI law. Also, every attorney who needs to refer a client, friend, or family member needs to at least be aware of this mandatory jail element of sentencing when referring the individual.

STRATEGIES TO AVOID THE MANDATORY JAIL TERM:

Offer to plead to the "Impaired" Section of the applicable DUI code (i.e. O.R.C. 4511.19(A)(1) for a dismissal of the charge triggering the mandatory jail.
Suggest that the prosecutor amend the code section to another DUI code section not triggering the mandatory jail.
For a reluctant prosecutor, see if the judge will only sentence your client on the "Impaired" section if your client must plead to both the "Impaired" and the "Super Per Se" section. For example, Ohio law only permits a DUI defendant to be sentenced on one of the DUI subsections. If the prosecutor is unwilling to dismiss the "Super Per Se" and you must plead to both subsections, see if the judge will sentence on the "Impaired" leaving the "Super Per Se" as an Allied Offense.
Was the defendant charged under the correct DUI subsection? The new R.C. sections are R.C. 4511.19(A)(5), (6), and (7) (blood, breath, and urine respectively).
Enter a "Not Guilty" and challenge the admissibility of the blood, breath, or urine test by filing and succeeding on applicable Motions to Suppress.

Also, on June 8, 2000, a 3rd offense DUI conviction (within the previous 6 years) will result in a mandatory forfeiture of the vehicle the defendant was driving. This does include vehicles driven by the defendant owned by another person! The old law only required a 180-day immobilization of the vehicle. Now that vehicle is to be forfeited to the State. However, this new law has many constitutional problems that may prevent the forfeiture (i.e. Proper Notice to the Owner, A Timely and Meaningful Hearing, possible defenses for Innocent Owners)

There are numerous constitutional problems with Ohio's current statutory framework for DUI. For example, despite known problems with the general reliability of breath test machines, Ohio trial attorneys cannot introduce evidence of these problems to a jury due to the Ohio Supreme Court decision of State v. Vega. (1984), 12 Ohio St. 3d 185. Now that 1st offenders are facing mandatory jail terms based upon the single reading of an imperfect machine, this 16 year old Ohio Supreme Court case smacks of due process problems. Just as alarming is the fact that a vehicle will be forfeited to the State on a 3rd offense DUI conviction within 6 years even if the vehicle belongs to someone other than the defendant and the owner had no knowledge of the defendant's driving record.

How far will Ohio go in criminalizing DUI in order to be effective? Each new piece of legislation is tougher than its predecessor yet have we produced the societal dividends sought after 18 years ago? As the DUI net continues to get larger and larger, the safeguards for insuring fairness in the courts shrink. As trial attorneys we are charged with the responsibility of protecting the rights of individuals against unfettered growth of legislation. We cannot deny the need for deterrence and punishment, however, it should not come at the expense of fairness and due process. The erosion of constitutional protections has picked up speed just in the past 10 years. We can be stopped by a police officer based upon an uncorroborated anonymous tip (Maumee vs Weisner (1999), 87 Ohio St. 3d 295); we can be detained at police checkpoints for no reason (Michigan v. Sitz (1990), 496 U.S. 444); an officer can stop us merely for choosing to turn and not go through the checkpoint (Coffman v. State, 759 S.W.2d 573 (Ark. App. 1988)); Snyder v. State, 538 N.E.2d 961 (Ind. App. 1989)); State v. Hester, 584 A.2d 256 (N.J. Super. 1990)) ; we can be stopped for "weaving within our lane" even if we never even cross the lane markers, (State v. Farley (Feb. 11, 1994), Lake App. No. 93-L-078, unreported); we don't have the right to call an attorney to discuss whether or not to take a breath test despite being under arrest and advised of our right to an attorney (Fairborn v. Mattachione (1996), 72 Ohio St.3d 345); we can be convicted of DUI if we decided to pull into a parking lot and "sleep it off even with the keys in our pocket (State v. Reynolds (May 26, 1994), Delaware App. No. 93CAC11040, unreported); police officers don't have to follow their training manual when instructing a motorist to do field sobriety tests, however, the motorist will be arrested if he/she does not perform the test in accordance with the training manual (State v.Homan (May 14, 1999), Erie App. No. E-97-100, pending before the Ohio Supreme Court)

Where are we headed? It is a very easy thing to devise good laws; the difficulty is making them effective, fair and constitutional.

Brad Koffel concentrates his practice primarily in the area of DUI Defense in Central Ohio. For more information regarding Ohio DUI issues, you may visit his website at www.buckeyedui.com or e-mail him at bpk@kjlaws.com. Please contact him regarding any problems you or your clients may be having with the application of this new law and procedures. He may be reached at 614-481-4480

FRANKLIN COUNTY TRIAL LAWYERS ASSOCIATION
Ohio's Leader of the Local Trial Bars

QUARTERLY COMMENT
Vol. 12, No. 3 Summer 2000
UNITED WE STAND by Jeff Boyd, President

We trial lawyers proudly see ourselves as gunslingers and cowgirls; Custer out there at the Last Stand, fighting off Big Insurance and Big Government. But I wonder whether the time has come for us to embrace some new role models. Don't you ever wonder if our opponents smile a little as they see us coming up against them, one or two at a time, walking into the kind of ambushes they can buy with their billions of dollars?

Face it - the other side has more money than Midas and more resources than all of us put together. Lately they seem to be using all that money and power not just to oppose us, but also to grind us into dust. Which brings me to my point: no matter how dedicated and skilled and caring and right we are, we can't beat them if we stand alone.

We need to start acting like we are on the same team. We need to share information. We need to talk to each other about what the other side is doing, and what we are doing to the other side. We need to share: what kind of offers we are getting for what kinds of cases; which adjusters are good to hit up for a few more dollars and which aren't; and what trial tactics work.

And let's not forget that we can't succeed in our profession without success in our businesses, either. Why is there so little exchange about what works and what doesn't for our practices as businesses: where to get a good deal on office space; the going rate for law clerks; or what bank will talk to solo practitioners?

WE are NOT each other's competition. The OTHER SIDE is our competition. And lately, they have been winning. They know that to divide is to conquer.

I am grateful to everyone who has worked to make this new e-mail format for our Quarterly Comment newsletter possible. We will USE IT to get you timely information! The FCTLA has a WEB SITE, with a member BULLETIN BOARD, at www.fctla.org. USE IT! We have a LISTSERVE, so that you can send questions and comments to our (e-mail equipped) members with a touch of the "send" button, at fctla@craiggroup.com. USE IT!

Communication has never been easier or faster. There is no excuse to founder when so many helping hands are a phone call or an e-mail message away. The FCTLA exists to make connections among our members. USE IT!

A SEAT ON THE BENCH
By Jami Oliver, Esq.

With the November election just around the corner, our electorate will not only be selecting a President of the United States, but Important judicial seats are also up for grabs. Judges affect our lives and the lives of our clients every day of our practice. So, it is important for you and your clients to know who is on the ballot and their prior experience. The following is a summary of the backgrounds of those candidates seeking judicial positions in contested races in Franklin County this fall.

Common Pleas Court:

Jennifer Brunner. Jennifer Brunner is running as a candidate for Judge James O'Grady's spot on the Franklin County Common Pleas bench. Brunner has been in the private practice of law for 13 of her 17 years. She has extensive litigation experience in the common pleas courts and courts of appeals throughout Ohio. Brunner's private practice has consisted largely of administrative appeals and election law. Thus, her court experience is largely a product of her administrative and government appeals practice, with 16 reported cases in Ohio and 10 unreported cases. Brunner is a graduate of Miami University and the Capital University Law School.

Brunner's opponent is Judge John Bender. Judge Bender was appointed to the Franklin County Common Pleas court bench in April of 2000. Prior to that, he served 12 years as a municipal court judge in Bucyrus. Throughout his career, Judge Bender has presided over 400 jury trials and 1,000 bench trials. Judge Bender spent 19 years in the courtroom, partly in the military where he was the chief prosecutor in Germany and was certified as a military judge. He spent several years in private practice handling both domestic relations cases and various civil litigation cases. Judge Bender has spent 20 years on the editorial board of the Ohio Jury Instruction Committee and serves as an instructor for the Ohio Judicial College.

Domestic Relations (1):
Harland Hale is a candidate for a seat on the Domestic Relations bench In Franklin County. Hale is a graduate of Otterbein College and Toledo Law School. He served as Chief of the Child Support Enforcement Section of the prosecutor's office in the 1980s and tried 30 to 40 domestic trials during that period. The following 13 years of Hale's career has been in the civil division of the Franklin County Prosecutor's Office. He has tried over 200 cases, representing the Sheriff's office and other county officials, including 30 to 40 civil rights cases, over 100 eminent domain cases, numerous business disputes, and 20 to 30 felony cases.

Hale's opponent, Carol Squire, has devoted about 75% of her practice as a sole practitioner to matters involving delinquency, abuse, neglect and dependency of juveniles. She has some experience with the domestic relations side of the practice, particularly custody-only and dissolutions, although her primary area of focus has been on juvenile matters. She spent a year and a half working for the Ohio Crime Victim Section of the Attorney General's office where she presented issues to the Supreme Court on behalf of the Attorney General.

Domestic Relations (2):

Judge James Mason is also a candidate for the Franklin County Domestic Relations Court. The highlights of his background are that he practiced law for over 23 years, has been an adjunct professor of law at Capital University Law School and Graduate Center, a state representative for the 25th Ohio House District, and a member of the Ohio Child Support Guidelines Advisory Commission, the Advisory Council for the Center for the Prevention of Family and Community Violence and the Ohio Supreme Court Domestic Relations Violence Task Force. Judge Mason served as a Judge on the 10th District Court of Appeals before his appointment to the domestic relations bench in January of 1999. Though he has only been on the bench 19 months, he was recently rated by a Columbus Monthly poll of attorneys as the highest-ranking judge on the domestic relations bench.

Judge Mason's opponent, Blythe Bethel, first worked as a trial associate for Schwartz, Kelm, Warren & Ramirez in 1983. In 1989 she become of-counsel in the trial department of Schottenstein, Zox & Dunn. It was in 1994 that Bethel dedicated her practice almost exclusively to family and juvenile court matters. Since then, she has been involved in over 140 cases filed in the Franklin County Domestic Relations Court.

THE WAR AGAINST "DUI" IS IN ITS 18TH YEAR
By Brad Koffel, Esq.

The Ohio General Assembly continues its assault on DUI creating even more confusing legislation and harsher penalties based upon suspect scientific evidence. Effective May 17, 2000, a mandatory jail sentence will be imposed for any DUI offenders who register a BAC over .170% by breath and blood and .238% by urine. In essence, there are now several BAC limits: "Regular DUI": .100% for breath and blood and .140% for urine; and the "Super DUI" .170% for breath and blood, and .238% for urine.

For historical purposes, it all started on March 16, 1983, the day S.B. 432 became law. DUI was no longer just another traffic offense. There were three significant changes: testing over the legal limit became a separate offense; license suspensions were "on-the-spot"; and, enhanced penalties for multiple offenders were triggered. Simultaneously, on the national level, federal grants were buried in highway legislation, task forces were created to curb drunk driving, and through the noble efforts of MADD, public awareness was aroused. By the end of the 1980's, empirical data suggested that the new laws were not curbing drunk driving. The answer was even tougher legislation. On July 25, 1990, juvenile motorists and commercial truck drivers received lower legal limits. DUI penalties became stiffer once again. Only three years passed before more change was needed. Adopting the tactics of the federal government on its war against drugs, Ohio passed legislation in 1993 authorizing pre-trial seizure of vehicles and license plates as well as forfeiture of vehicles in the most serious DUI cases. Three years later, in 1996, Ohio joined several other states in elevating a 4th offense DUI to the felony level (currently 4th conviction within the last 6 years). The 1996 legislation expanded the "look back" period from 5 years to 6 years thereby widening the net for "repeat offenders". "Out-of-state" DUI convictions and juvenile adjudications were specifically included and counted as "prior convictions" if they occurred within with six years of the instant offense. The fifth major enhancement in 18 years became effective on May 17, 2000. The worst drunk driver can now be sentenced to 5 years in prison as a 3rd degree felony. Perhaps the most important piece of information all attorneys should be aware is the fact that a 1st offender can now face a mandatory jail sentence. A new legal limit ("Super Drunk") is among us: 170% measured by breath or blood or .238% measured by urine. As the following chart illustrates, having a concentration of alcohol in excess of the new legal limit will trigger a mandatory jail term based upon the defendant's prior DUI conviction record. 1st Offense DUI Mandatory 6 days in Jail: (3 days can be served at an Alcohol Program, but the other 3 must be incarceration) 2nd Offense DUI Mandatory 20 days in Jail 3rd Offense DUI Mandatory 60 days in Jail 4th Offense DUI Mandatory 120 days in Jail

The above references a 6-year look back period (i.e. a 1st offense DUI within the past 6 years calculated date of conviction to date of offense). Gone are the days of pleading to the DUI on a 1st offense and receiving the 3 day program if the defendant tested over .170%. It is incumbent upon every attorney who may handle a DUI to be acutely aware of the dramatic sentencing change in Ohio's DUI law. Also, every attorney who needs to refer a client, friend, or family member needs to at least be aware of this mandatory jail element of sentencing when referring the individual.

STRATEGIES TO AVOID THE MANDATORY JAIL TERM: Offer to plead to the "Impaired" Section of the applicable DUI code (i.e. O.R.C. 4511.19(A)(1) for a dismissal of the charge triggering the mandatory jail. Suggest that the prosecutor amend the code section to another DUI code section not triggering the mandatory jail. For a reluctant prosecutor, see if the judge will only sentence your client on the "Impaired" section if your client must plead to both the "Impaired" and the "Super Per Se" section. For example, Ohio law only permits a DUI defendant to be sentenced on one of the DUI subsections. If the prosecutor is unwilling to dismiss the "Super Per Se" and you must plead to both subsections, see if the judge will sentence on the "Impaired" leaving the "Super Per Se" as an Allied Offense. Was the defendant charged under the correct DUI subsection? The new Revised Code sections are R.C. 4511.19(A)(5), (6), and (7) (blood, breath, and urine respectively). Enter a "Not Guilty" and challenge the admissibility of the blood, breath, or urine test by filing and succeeding on applicable Motions to Suppress. Also, on June 8, 2000, a 3rd offense DUI conviction (within the previous 6 years) will result in a mandatory forfeiture of the vehicle the defendant was driving. This does include vehicles driven by the defendant owned by another person! The old law only required a 180-day immobilization of the vehicle. Now that vehicle is to be forfeited to the State. However, this new law has many constitutional problems that may prevent the forfeiture (i.e. Proper Notice to the Owner, A Timely and Meaningful Hearing, possible defenses for Innocent Owners) There are numerous constitutional problems with Ohio's current statutory framework for DUI. For example, despite known problems with the general reliability of breath test machines, Ohio trial attorneys cannot introduce evidence of these problems to a jury due to the Ohio Supreme Court decision of State v. Vega. (1984), 12 Ohio St. 3d 185. Now that 1st offenders are facing mandatory jail terms based upon the single reading of an imperfect machine, this 16-year-old Ohio Supreme Court case smacks of due process problems. Just as alarming is the fact that a vehicle will be forfeited to the State on a 3rd offense DUI conviction within 6 years even if the vehicle belongs to someone other than the defendant and the owner had no knowledge of the defendant's driving record.

How far will Ohio go in criminalizing DUI in order to be effective? Each new piece of legislation is tougher than its predecessor yet have we produced the societal dividends sought after 18 years ago? As the DUI net continues to get larger and larger, the safeguards for insuring fairness in the courts shrink. As trial attorneys we are charged with the responsibility of protecting the rights of individuals against unfettered growth of legislation. We cannot deny the need for deterrence and punishment; however, it should not come at the expense of fairness and due process.

The erosion of constitutional protections has picked up speed just in the past 10 years. We can be stopped by a police officer based upon an uncorroborated anonymous tip (Maumee v. Weisner (1999), 87 Ohio St. 3d 295); we can be detained at police checkpoints for no reason (Michigan v. Sitz (1990), 496 U.S. 444); an officer can stop us merely for choosing to turn and not go through the checkpoint (Coffman v. State, 759 S.W.2d 573 (Ark. App. 1988)); Snyder v. State, 538 N.E.2d 961 (Ind. App. 1989)); State v. Hester, 584 A.2d 256 (N.J. Super. 1990)); we can be stopped for "weaving within our lane" even if we never even cross the lane markers, (State v. Farley (Feb. 11, 1994), Lake App. No. 93-L-078, unreported); we don't have the right to call an attorney to discuss whether or not to take a breath test despite being under arrest and advised of our right to an attorney (Fairborn v. Mattachione (1996), 72 Ohio St.3d 345); we can be convicted of DUI if we decided to pull into a parking lot and "sleep it off even with the keys in our pocket (State v. Reynolds (May 26, 1994), Delaware App. No. 93CAC11040, unreported); police officers don't have to follow their training manual when instructing a motorist to do field sobriety tests, however, the motorist will be arrested if he/she does not perform the test in accordance with the training manual (State v.Homan (May 14, 1999), Erie App. No. E-97-100, pending before the Ohio Supreme Court) Where are we headed? It is a very easy thing to devise good laws; the difficulty is making them effective, fair and constitutional.

THE ETHICS OF MANN - OPINION AND ANALYSIS
By William C. Mann, Esq.

On June 1, 2000 The Supreme Court of Ohio's Board of Commissioners on Grievances and Discipline issued two non-binding advisory opinions of interest to trial lawyers.

The first, Opinion 2000-2, deals with one of the problems created by liability insurance carrier's insistence that the defense lawyers submit their legal bills to outside, or third party auditing companies. These companies claim to review the bills to determine if the work done and the amounts charged by defense counsel are appropriate.

Opinion 2000-2 states that a defense attorney, hired by a liability insurance company, must have her client's (that is, the defendant's) informed consent before submitting her detailed legal bills to an outside auditing company. That is because the submission of such information breaches the attorney-client privilege.

Such a breach may well constitute a wavier of that privilege. Therefore, plaintiffs' counsel may want to learn whether defense counsel has submitted her bills to an outside auditing agency. If she has, it may constitute a wavier of the attorney-client privilege, thereby enabling plaintiff's counsel to obtain and review defense counsel's file, or at least those parts generated by billable hours.

Before you become too excited about the prospect of pouring over defense counsel's file, remember the golden rule of litigation: he who has the gold usually makes the rules. The insurance industry has enormous wealth and therefore tremendous political influence. The industry can intimidate a good many judges faster than you can say, "Campaign contribution". So don't expect every member of the judiciary to implement the legal philosophy articulated by Opinion 2000-2. Still, in the right case ***.

The Board's second recent pronouncement, of interest to trial lawyers, is Opinion 2000-3. It states that it is unethical for an insurance defense attorney to abide by an insurance company's guidelines in the representation of an insured (the lawyer's client) when the guidelines directly interfere with the lawyer's independent professional judgment on behalf of her client. If other words, it is unethical for an insurance defense lawyer to allow an insurance carrier to instruct her to take action, or to avoid taking action, when she does not believe that the carrier's instructions are in her client's best interests. The lawyer, not the insurance company, must direct the conduct of the litigation.

As we all know, some insurance companies simply instruct defense counsel to denounce the plaintiff, and deny and delay his highly legitimate claim. According to the Board, these stonewalling tactics are now unethical unless, in the lawyer's independent professional judgment, they are in her client's best interests.

Whenever a plaintiff's lawyer has a reasonable, good faith belief that defense counsel has surrendered control of the defense to the insurance carrier, he may want to write to defense counsel and politely remind her of her ethical obligations. In egregious cases, plaintiff's counsel may need to report the defense lawyer to the disciplinary authorities. See Disciplinary Rule 1-103, which says that a lawyer possessing unprivileged knowledge of unethical conduct shall report it to Disciplinary Counsel, or to a Certified Grievance Committee.

Always exercise good judgment and common sense before accusing another lawyer of unethical conduct. The insurance industry spends considerable time mindlessly denouncing its opposition. It would be unseemly for trial lawyers to do likewise. But in appropriate cases, the trial lawyer has an obligation to take action.

Jump Starting Voir Dire
By Timothy J. Boone, Esq.

The Question: I have trouble getting the jury to talk to me. So, how do I get the jury to open up, particularly during the initial stages of the voir dire process?

Well, first of all, I would not recommend you start off with any of following:

"Lady's and gentleman. 'Voir Dire' is a French phrase meaning 'to speak the truth'."

That really warms the hearts of the prospective jurors, since you have now suggested that each of them is about to lie to you if you had not told them this archaic definition.

"I am going to ask you some personal questions. Please don't be offended by these questions, because they are simply intended to elicit information about your competency to serve as a juror on this case."

Now this is always a crowd pleaser! I remember once asking a blind date a personal question in the first ten minutes and almost got my head knocked off. So how defensive do you think total strangers on the jury will be? Their "guard" just went way up.

"The process of voir dire is to flush out the prejudices you may hold regarding either my client or her case."

Now that one is no help either. Of course, that's what you are trying to do, but you can't tell them that. No one thinks they have any prejudices or biases. So telling them they are biased will cause you to learn nothing, or less.

"By the time we end this case I will be asking you to award my client $250,000. If the proof supports that amount, do you believe you can make such an award to fairly compensate my client?"

This one has all kinds of problems, including the fact you didn't call your client by name. However, if this kind of statement is made too early in voir dire, before the jury has any understanding of the facts supporting liability or damages, they will reject the amount, and assume that you are just one of those money grubbing attorneys they have read about in the newspapers.

Years ago lawyers in small communities knew the cultural base and biases of their jurors without asking too many questions. Today, particularly in this urban society, that is not possible. Therefore, the ideal voir dire becomes a looking glass into a juror's value system. Once you acquire that insight you can then de-select the least favorable jurors. So let's see how we might accomplish this goal of detecting the "real juror".

The Answer:

You know when I grew up in the agrarian west central part of Ohio, I thought only cows got "hoof 'n mouth" disease. Based upon my observations, trial lawyers must hang around cattle too much, because frequently they acquire "foot-in-mouth" disease right in front of the jury before the case begins. The symptoms of this trial lawyer disease are easy to recognize - the attorney is talking too much and the jury is listening. Instead, voir dire should be a time to get the jury to sit back, relax, let their guard down a little and talk to you. Until they relax somewhat, you will never get them to start communicating what they really think and believe about your case. Thus, voir dire ought to be a time for the jury to talk to you, not vice versa.

To accomplish the goal of open, sincere and frank communication you first have to put your questions in some context. Either draft a short paragraph describing the case and ask the trial judge to read it to the jury before questioning begins, or be prepared to make the statement yourself, by saying, "Before we begin, let me tell you a little about this case." The jury needs to know why you are asking your questions. So, give them some background information. Also, give the opposing counsel a copy and ask for any editorial comments in advance.

This statement should be factually neutral. You don't want the judge to think you are arguing your case in voir dire and you don't need the opposing counsel to object that early in the proceeding. Give the jury the essence of the case without embellishments or fanfare. The prospective jurors need to know what happened, when and where, and the results of those events. Leave the argumentative words for later in the case.

Secondly, stay at least ten feet from the front edge of the jury box during voir dire. People who are strangers get very anxious if you encroach upon their "personal space" [approximately three to five feet in a social setting] before they get to know you. So stay back! You can test this at the next party or gathering you go to by walking up to a stranger to engage in conversation and see how close you can get before she/he backs up. [Caution: Please test this on someone who has not been drinking alcohol, since his or her depth perception will otherwise already be impaired.] Since a courtroom is a far cry from a social gathering, you need to be further back.

Thirdly, get out from behind the podium. How can you ask a juror to open up to you and expose her or his inner most feelings, when you stand there protected from insult and injury by a two hundred pound five-foot tall wooden monolith. You must be willing to show your vulnerability to receiving their answers and in order to ask them what they are thinking and why they feel that way.

Lastly think of yourself in voir dire as the "warm up act" for the main event. Why do new comedians go on stage first before the star? Answer - so that the star does not have to spend half the act getting to the point where the audience begins to respond to him. I have the following suggestion to "warm up" the jury to the tough questions that will follow later in voir dire.

I suggest that you can gain useful information about each member of the jury and get him or her to relax and start talking with you if you ask:

"How many of you would rather be somewhere else other than serving on jury duty or being in court today?"
[Note: I even raise my own hand in answer to this question, as I do anytime during voir dire when my own answer personally qualifies.]

At first the jurors will not know whether you really want them to answer. So quickly be the first volunteer and say, "Well, I know that if I weren't here, I'd rather be __________." It is particularly important to pick something personal to fill in the blank, e.g., "I'd be at the park playing with my grand children." or "I'd be at my favorite spot fly fishing." or "I would rather be riding a horse, because the outside of a horse is good for the inside of a person."By volunteering your own answer, you not only show you really did want a response, but you also set an example of the kind of answers you expect from them. Please do not tell them you would be back in the office preparing for the next case. That will not encourage the kind of responses you want from the jurors. Let them know through your answer, that you "have a life" outside law, and are proud of it, i.e., you are just like them.

A jury trial is serious business and each prospective juror comes to these duties with this perspective in mind. Also, the formal solemn atmosphere of a courtroom does not lend well to easy flow of communications. Though you need to keep the tone of seriousness, you also need to break down some of the inhibitions and barriers to personal communications this creates.

After volunteering your own answer, now you can ask individual jurors what they would rather be doing. Encourage them to be totally candid. Let them know that it is all right to share "this little secret" with all of us - "We promise not to tell anyone." The effect is that the question is not so personal that the jurors will be offended, and yet you will likely learn what is the most important thing in their life and something about their value system. Some will say they would be working. Don't scoff at that, but do respond by saying, "That's great, but if you weren't working, what would you rather be doing?"

I have found that by following this process, I engage in early conversation with each juror, learn valuable insights into their personality, and learn their names quickly for later use. Everyone likes being called by their name, and this helps reinforce their names in my mind because I'm talking with them.

Of course, do not just go from juror to juror asking this same question. Instead, depending upon the answer, use it as a follow up to a real issue you want to raise in voir dire. Even go back to the jury as a whole to ask one of your primary questions to the group, before asking the next juror what "they would rather be doing."

Try this approach in your next jury trial and see if you don't build rapport faster and learn more useful information. The jury will thank you for not "hitting them over the head" with big issues so quickly, and yet you will not waste this valuable opportunity by doing all the talking. I know as a plaintiff's lawyer, which requires you to go first, you're nervous too - but stop talking, start listening and ask them about what they believe and think.

NEW COMMON PLEAS COURT FILING FEES AND PROCEDURES

All civil trial lawyers will soon find out that effective August 1, 2000, the filing fees for civil cases in the Franklin County Court of Common Pleas have changed dramatically. By way of example, filing a new tort action will now cost $225.00. To review in detail the new fee schedule, copy the following site to your browser:

http://www.franklincountyclerk.com/9b_NewFees.html

There is also a new "Civil Case Information" form that the clerk is encouraging us to use. You can find and download that form at:

http://www.franklincountyclerk.com/pdf/Civil/Civil%20Case.pdf

New Format and Delivery of FCTLA's Quarterly Comment

As you can see there is an entirely new format to our Quarterly Comment. As a step into the new millennium, to take advantage of the computer revolution and to save money on printing and postage, our quarterly newsletter will now primarily be delivered via e-mail, instead of "snail mail" [as Judge Bessey kindly refers to the postal service]. Those of you who do not have an e-mail address can still receive a printed copy. However, we strongly encourage you to pass along your new e-mail address as soon as you acquire it. If you have not yet provided your e-mail address to FCTLA, please do so TODAY! Just send your address to tking@craiggroup.com and our executive director will add you to our list.

As we develop this project during this year, we would appreciate any comments or suggestions that you may have. So feel free to send your thoughts to Timothy J. Boone, Editor at: cowboy@lawyer4u.com. We may not be able to accommodate all your thoughts, but we will certainly give due consideration to every one of them.

The Honorable Timothy Black, Candidate for the Ohio Supreme Court, to Speak at FCTLA's September Meeting

As we all know, the November Ohio Supreme Court judicial races are hotly contested. One of the candidates, The Honorable Timothy Black of the Hamilton County Municipal Court, will be the guest speaker at the FCTLA's dinner meeting on Tuesday, September 19, 2000 at 5:00 p.m. at the Columbus Athletic Club.

The Ohio Democratic Party, OATL, and numerous other organizations have endorsed Judge Black. Members, and their quests, are encouraged to attend the dinner meeting and gain first hand insight into one of the candidates.

Judge Black received his A.B. from Harvard University in 1975 and his law degree from Chase College of Law in 1983. Prior to serving his community on the bench, he was a trial lawyer for 10 years with a prestigious Cincinnati law firm.

Recognized as a leader throughout the state on preventing family violence, he founded the Domestic Violence Coordinating Council that is dedicated to reducing domestic violence in Ohio. He has also served as vice president of Pro-Kids (an organization that represents abused and neglected children in the court system) and president of Invest in Neighborhoods (an organization of city neighborhood councils). He is also a member of many other civic and professional organizations.

Don't miss this opportunity to hear and ask questions of a person who has the opportunity to guide and impact Supreme Court judicial decisions for the next six years. Call 228-1017 to make your reservation.

FCTLA Committee Reports

Negligence Law Committee Report
By Glen R. Pritchard, Chair

Questions still linger about set-off in underinsured motorist claims. Consider the automobile crash in which Berry was killed. The tortfeasor had $50,000 in auto liability coverage. From that amount, Berry's seven surviving family members each received approximately $3200 after payment of funeral expenses and attorney fees. Berry was covered under his parent's auto policy that has UDM limits of $25,000 per accident. Is there any underinsured motorist coverage?

Probably all insurance carriers would have you believe that no coverage exists because the tortfeasor's liability limits exceeds the $25,000 UDM limits. Not so holds the Second District Court of Appeals in Berry v. Przyborowski (Nov. 19, 1999), Miami App. No. 99-CA-21, unreported. "R.C. 3937.18 does not preclude recovery merely because the insured's limits are identical to the tortfeasor's limits when, due to multiple claimants, the insured is unable to recover the tortfeasor's limits." The Court concluded that UDM coverage should be reduced by the amount received by all "insureds" under the policy, but not by the amount received by next-of-kin who were not "insureds".

The Twelfth District Court of Appeals reached exactly the opposite result in Littrell v. Wigglesworth (March 13, 2000), Butler App. Nos. CA99-05-092, CA99-08-141, unreported. The Littrell court held that no underinsured motorist coverage exists when the tortfeasor's policy limit equals or exceeds the UDM policy regardless of how many claimants must compete for the liability proceeds.

An answer to these confounding set-off questions may be on the horizon. On August 2, 2000, the Ohio Supreme Court accepted jurisdiction to hear Wigglesworth on a conflict with Berry. The Court also accepted Stickney v. State Farm (Oct. 19, 1998), Richland App. No. 98 CA 7, unreported, and Karr v. Borchardt (Dec. 24, 1998), Seneca App. No. 13-98-36, unreported. Briefing and argument of Stickney and Karr are stayed pending a decision in Wigglesworth.

Please visit the new website of the
Franklin County Trial Lawyers
www.fctla.org
It has links to other useful websites and the current calendar of events for 2000-2001.
Your suggestions to make it more useful are welcome. Please send an e-mail to us at
tking@craiggroup.com
We look forward to hearing from you and seeing you at the dinner meetings and the "members only" seminars. If you want to e-mail a question or raise an issue to the entire list of members of FCTLA then send the e-mail to: fctla@craiggroup.com

HOT ECONOMY COOLS OFF - PART 2 OF 2
Bankruptcies on the rise and likely to continue

Sunday, February 4, 2001
NEWS 01A

By By Paul Souhrada
Dispatch Business Reporter

The first cracks in the seemingly unsinkable U.S. economy appeared months before the recent reports of layoffs and financial difficulties at LTV Steel, DaimlerChrysler, Navistar and other corporate giants.

Bankruptcy lawyers say they watched the fissures form -- and they see them growing only larger.

"There's been a huge increase in filings in the last three months," said Victoria Powers, an attorney with Schottenstein, Zox & Dunn in Columbus. "Most bankruptcy lawyers I know are expecting to have a relatively big year."

Figures from the U.S. Bankruptcy Court in Columbus -- which handles cases for 30 counties in central and southeastern Ohio -- show a slight uptick in the number of bankruptcy filings: 11,965 last year vs. 11,910 in 1999.

In recent years, Columbus lawyer Mark Jump has noticed a new kind of debtor.

His typical case, he said, now involves a couple in their early 30s -- "both working, kids, a couple of cars, and they're in over their head in credit-card debt."

"They have income -- just too much debt," said Jump of Koffel & Jump, which expects to handle as many as 1,000 Chapter 13 cases this year.

Initially, he said, the couple might feel flush with their good-paying jobs and the rising value of their stock portfolio and are handling their finances. Then one of them loses a job or the family is hit with a big medical bill, and they miss a couple of mortgage payments.

Suddenly, he said, they're facing foreclosure.

"A lot of middle America has no savings," he said. "So anything goes wrong . . . things get out of whack pretty quick."

Nationally, bankruptcies had been on the decline at least through Sept. 30 (the latest month for which figures are available), but the American Bankruptcy Institute expects that to change.

"I think we can safely predict at least a 10 percent rise in filings during 2001," said Samuel Gerdano, the group's executive director. "Most bankruptcy law firms are expecting an increase in business filings and are adding lawyers and other staff in anticipation."

The bulk of the Columbus court's cases continue to involve Chapter 7 protection -- which allows an individual or business to wipe out debts entirely after most assets are sold to pay back as much as possible. The 8,874 filings last year, though, represented a decrease from 1999.

Chapter 13 cases, which require individuals to pay back creditors based on a court-approved plan, grew to 3,058 last year, continuing a steady climb that began in the mid-1990s.

Prodded by the banking and credit-card industries, lawmakers have been trying to make it tougher for people to seek bankruptcy protection, particularly Chapter 7 filings. Some of the changes would force more people into Chapter 13 and require them to repay more to creditors.

Congress passed a bankruptcy-reform law last year, but President Clinton vetoed it. Supporters of the changes reintroduced the legislation Wednesday and, with President Bush now in the White House, seem confident of its passage.

Central Ohio has been somewhat insulated from the increase in business bankruptcies, said Powers, who works mostly with businesses that have sought Chapter 11 protection.

"It tends to go by industry," she explained, noting that the steel industry is the latest to experience trouble, with the furniture industry suffering the most.

Powers handled the White's Fine Furniture bankruptcy last year, when the Columbus-based retailer closed after 55 years in business. West Carrollton-based Roberds also went out of business last year, closing 15 furniture and appliance stores.

The rising number of Chapter 13 cases, she says, can be attributed in part to the past decade of economic growth.

"These (cases) might otherwise be Chapter 7's," she said. "People have a better chance of repaying their debts in good economic times."

A person seeking to file for bankruptcy can choose the type of protection, but a judge has the power to force a filer into Chapter 13 instead of Chapter 7.

Jump and some other bankruptcy lawyers say credit-card companies should share the blame for the growing problem.

"I think it's mutual irresponsibility," Jump said. "It's irresponsible lending and irresponsible borrowing. The two don't go together too well."

A.C. Strip, a partner in Strip, Fargo, Hoppers & Leithart in Columbus, thinks the credit companies deserve more of the blame.

"The No. 1 problem is the profusion of credit cards and the ease by which people get them," he said.

He cited one client, an elderly women living on a $900-a-month Social Security check, who racked up $25,000 on eight or nine credit cards. While Strip was writing the companies that his client would not be making any more payments, she received another solicitation in the mail for a pre-approved card with a $10,000 limit -- from an existing creditor.

"She can't pay the bills she's got, and they're offering her more credit," an incredulous Strip said.

Jeff Quayle, senior vice president and general counsel at the Ohio Bankers Association, counters: "Seems like the marketing department needs to talk to the collections department better."

Quayle said he couldn't comment on the actions of individual members of his trade group, but he said most agree that some changes are needed in federal bankruptcy laws.

Encouraging more people to pay at least part of their debt is a good start, he said.

Blaming credit-card companies for bankruptcies, Quayle said, is like blaming automakers for drunken drivers.

"Credit is a tool, and it needs to be used responsibly."
psouhrad@dispatch.com

LAB CHIEF RESIGNS AFTER BREATH TESTS VALIDATED

Saturday, February 24, 1996
NEWS LOCAL & NATIONAL 01A

By By James Bradshaw
Dispatch Statehouse Reporter

The State Highway Patrol's breath tests for drunken driving are back, and the laboratory director who brought their validity into question is gone.

Leonard J. Porter, chief of biochemistry and toxicology for the Ohio Department of Health, submitted his resignation yesterday, effective at the end of the day.

''His stated reason is that he's retiring,'' department spokesman Randy Hertzer said. ''He's been with the department 28 years.''

Columbus defense attorney Brad Koffel, however, said Porter's departure raises more questions.

''I don't see how that resolves anything,'' he said.

Porter's original memo shows problems in the process, Koffel said. He said he will continue challenging the tests and the department's procedures for determining their reliability.

Porter resigned within hours of an announcement by Health Director Peter Somani that the accuracy of solutions used to test the breath machines was confirmed in independent tests by chief toxicologists for Franklin and Cuyahoga counties.

A Jan. 29 memo from Porter to prosecutors and law enforcement agencies prompted the patrol and several police agencies on Feb. 8 to suspend the use of breath tests. The department subsequently characterized the memo as ''confusing.''

The patrol reinstituted the tests yesterday with Somani's assurance that prepackaged solutions of alcohol and water provide accurate calibration of the machines.

Somani's announcement said Porter's ''unauthorized memo . . . miscommunicated procedures for approving and using calibration solutions.''

Hertzer said a hearing was held Tuesday to notify Porter that disciplinary action was being considered. Porter did not return a call for comment yesterday.

The calibrating solutions are prepared to produce readings on the machines of about 0.10 percent - the concentration of alcohol in the bloodstream that constitutes drunkenness under Ohio law.

Somani said reviews by Dr. James Ferguson of the Franklin County Coroner's Office and Dr. Craig Sutheimer of the Cuyahoga County Coroner's Office determined that all 19 batches of the solutions used in Ohio the past three years were properly approved.

Sgt. John Born, spokesman for the patrol, said the breath machines allow troopers to complete investigations sooner and issue on-the-spot license suspensions for those who fail or refuse tests.

While breath tests were suspended, the patrol determined blood-alcohol levels through urine or blood tests, which require about a week to process. Breath test results are immediate.

''We're able to basically complete our case investigation that night,'' Born said.

He said the patrol arrested 25,108 drivers last year on charges of drunken driving; 7,388 cases are pending.

''A number of those cases obviously could have been affected if they had not gone back and checked that the solutions were properly certified,'' he said.

Rob Levering, first assistant city prosecutor for Columbus, said Somani's announcement restores faith in the test results.

''It looks like the Department of Health was doing everything right all along,'' he said.

LARGE CASH VERDICTS HELP RIGHT WRONGS

Saturday, October 8, 1994
EDITORIAL & COMMENT 07A
Memo: Letters to the Editor Columbus Dispatch

I respond to Dana C. McCue's recent letter to the editor, which was headlined, ''Juries can be swayed by an emotional appeal.'' By the contents of the letter, it is safe to assume that McCue at least attended law school. It is unfortunate one as presumably educated as McCue has fallen prey to the insurance industry's billion-dollar propaganda machine and assumes that juries of our peers unconsciously dole out multimillion-dollar verdicts.

Obviously McCue either has forgotten or never learned that the right to trial by jury is one of the single-most important rights existing in the Free World. Large verdicts are not the result of an impassioned jury. They are the result of significant wrongs that have befallen innocent people. Period.

McCue's statement, ''Even this professor must be shocked by the jury verdicts announced in our courtrooms,'' exemplifies McCue's unfortunate lack of knowledge about jury-trial procedure. Perhaps the jury was ''shocked'' by the 3-year-old girl who is now a spastic quadriplegic as a result of a train at a defective railroad crossing. Perhaps the jury was ''shocked'' by the permanently scarred woman whose seat belt failed to restrain her properly when the auto manufacturer was well aware of the defect and decided it was cheaper to pay a few victims as opposed to recalling the belt and making it safe for all of us. Perhaps the jury was ''shocked'' . . .

McCue should be embarrassed for blaming juries for ''outrageous'' verdicts. This is outrageous in and of itself. Negligent and intentional conduct resulting in catastrophic injuries and death to innocent people is outrageous.

Without the civil-jury system in place, manufacturers and others have no responsibility to the rest of us for our safety. Fortunately, America is a much safer place as a result of our jury system. If McCue is concerned about anarchy, consider our country without this constitutionally protected right.

Bradley P. Koffel, attorney
Columbus

LAWYERS SAY DUI CASES IN JEOPARDY
CHALLENGES START AS BREATH TESTS STOP

Tuesday, February 13, 1996
NEWS LOCAL & NATIONAL 01A

By Randall Edwards
Dispatch Staff Reporter

Prosecutors say hundreds of blood-alcohol tests may be invalidated in drunken driving cases because of misleading health department certification procedures for a solution used to calibrate breath-test machines.

''It's not going to lead to a lot of dismissals, but it's going to lead to a lot of reductions (in charges),'' said assistant Columbus City Prosecutor Rob Levering.

''We're going to have a lot of tests thrown out,'' Levering said. ''It's no small problem.''

Although the machines may well have been accurate, their reliability is in question, said Bradley Koffel, a defense lawyer who is challenging the certifications.

''If the standard you are using is off, then you have no idea whether the machine is working,'' he said.

Lawyers and judges are sorting out the impact of a memo, released last month by the Ohio Department of Health, that raised questions about the reliability of testing standards for an alcohol solution used to gauge breath-testing machines.

The health department yesterday defended its tests, saying that the memo was issued to clarify the procedures, not to cast doubt on them.

But the State Highway Patrol and police departments across the state suspended their breath tests and prosecutors pored over the memo, to determine how it may affect prosecution of drunken driving cases. In the meantime, court challenges to drunken driving cases are mounting.

A hearing yesterday in one case that might have led to the first court ruling in the dispute was postponed until March by Franklin County Municipal Judge Steven B. Hayes, who could not hear the case because of a previously scheduled trial.

The health department's Leonard J. Porter, who was to have testified for the prosecution, defended the tests, saying he wrote the memo in response to questions from defense attorneys.

The solutions used to calibrate the machines are still certified by the health department, said Porter, chief of biochemistry and toxicology.

He admitted that his memo may have been confusing, but added that the only area in which there might be some dispute is in what he called ''edge cases'' in which defendants test at a level very close to 0.10 - the blood-alcohol level at which someone is considered drunk in Ohio.

''We are standing behind the certificate. Yes,'' Porter said.

The debate is over the department's certification of test solutions - mixtures of water and alcohol designed to produce a reading of about 0.10. These solutions, by law, must be used to calibrate breath-testing machines weekly.

Defense lawyers asked the health department to explain how it certifies the machines, said Dennis Evans, a defense lawyer in Columbus. When Porter issued his memo, it appeared that he certified the solution at 0.10, when the solution actually may have been a slightly different strength.

The issue has been raised in several cases in the past few weeks, Levering said. All have been settled without a court hearing.

The prosecutor's office has been reviewing challenges individually, Levering said. Some charges have been reduced to reckless driving, for example, if prosecutors believe the calibration of the instruments could be challenged. Other cases have proceeded as if there were no test, relying on officers' testimony and field sobriety tests, he added.

The health department's announcement likely will lead to some challenges of drunken driving cases but across-the-board dismissals are unlikely, said Franklin County municipal judges who hear such cases.

''Obviously, it's going to cause us some problems,'' said Judge Scott Van Der Karr. ''There will be people who will withdraw their pleas and each judge will just have to decide how to handle it.''

Judge James E. Green said, ''If someone comes in here and they challenge the test based on an improperly calibrated machine, which would be based on a solution that is not properly certified, it'd be something we'd have to consider.''

A large number of cases won't be thrown out because of the calibration problems, ''but it will give defense attorneys something else to work with,'' he said.

Going MADD

By
Jonathan Athens

The number of drunk-driving related deaths in the United States has plummeted by nearly 50 percent since 1980 when Candy Lightner created Mothers Against Drunk Driving. They made their presence known on Capitol Hill and in state assemblies, forged an enduring partnership with law enforcement, and won the tacit support of both Republicans and Democrats of every stripe, conservative and liberal. Through a lobbying juggernaut that raises tens of millions of dollars each year, MADD has succeeded in stiffening penalties, lowering the so-called legal blood-alcohol concentration limit, raising the drinking age to 21, and was instrumental in making sobriety checkpoints a Constitutionally accepted practice.

Now, with their war at a standstill, the organization runs the risk of being marginalized and losing tens of millions of dollars, so they've taken their fight to a new front. MADD is pushing hard for more stringent laws that criminalize social drinkers, and, despite their adamant denials, wants society and the courts to declare a war on alcohol in the same fashion as the war on drugs.

Call it neo-Prohibition or the New Puritanism, MADD is simply mad.

As part of their "Getting MADD All Over Again" campaign, the organization is pushing for stricter laws, stiffer penalties, and higher taxes on beer and distilled spirits. Among those measures are more frequent checkpoints, mandatory jail time in lieu of community service for offenders, mandatory treatment instead of assessment, and establishing more comprehensive databases of driving records.

Other measures include a uniform closing time for bars nationwide in order to curtail "barhopping", a law limiting commercial airline passengers to one drink per hour, more regulations limiting the advertising of alcoholic beverages, and an end to "Happy Hour" drink discounts.

In early December, the MADD released its triennial report card on the nation, giving a grade to each state as to their performance or rating in stopping drunk driving. America got a C- because the number of arrests has leveled out and the number of alcohol-related deaths on the nation's roads and highways has hovered between 16,000-17,000 since 1994.

Everyone is to blame, according to MADD. Lawmakers have become lax, the public is complacent, the feds aren't giving states enough money, police aren't cracking down hard enough, the advertising industry and Hollywood continue to glamorize booze, and defense attorneys are telling people not to take breath tests.

"We feel we need to jump start the nation. For us, the biggest problem is complacency. In some ways, we may be victims of our own success," says Tresa Hardt, spokeswoman for the organization headquartered in Irvine, Texas.

The "complacency" Hardt complains of may be that MADD has achieved everything it initially set out to accomplish.

Former MADD President Katherine Prescott has expressed her frustration at "battling the perception that the problem (of drunk driving) is solved and that we don't need money or anyone working on it."

She may be right. Comes 1998, donations dropped and the organization started closing down chapters and laying off employees-the Los Angeles affiliate was downsized to two paid staffers, and the Chicago chapter closed its doors, according to reports from the Capital Research Center.

Hardt says American society needs a whole new outlook on alcohol and drinking.

"There needs to be a cultural shift-that it is not acceptable to get behind the wheel after drinking," she says, adding:"We've really not done everything we can do."

A comprehensive approach is needed and MADD's renewed efforts aim to "change personal opinion and public action on the issue," Hardt says.

Guilty Until Proven Innocent

While MADD has succeeded over the years in getting lawmakers and judges to take drunk-driving offenders seriously, their efforts have taken a sinister turn that has already undermined basic civil liberties. Drunk-driving laws are "per se laws" meaning one is presumed guilty simply by being charged.

Such laws are considered "strict liability" laws, because they are linked to the federal requirement for local law enforcement agencies to use federally approved breath test machines as the true and absolute measure of blood-alcohol levels. Drunk driving had reached epidemic proportions in the 1970s and 1980s, but while the number of arrests was up, the number of convictions started to plummet, because defense attorneys were able to argue against the reliability of breath test machines.

As a result of several high-profile drunk driving cases in the 1980s, states began enacting "per se laws" to secure and accelerate convictions. They made the breath test machines sacrosanct and their results infallible in the eyes of the law.

In other words, if the machine says you are drunk, then you are drunk.

Those accused of felonies such as murder, robbery, burglary, or grand theft have more rights in the sense such defendants are presumed innocent until proven guilty, and are able to challenge the reliability and accuracy of evidence presented by the prosecution. When it comes to DUI or OMVI, the defendant bears the burden to prove his or her innocence.

"If jurors knew what we knew about breath test machines, we'd have an 80 to 90 percent acquittal rate," says Brad Koffel, one of the nation's leading experts on drunk driving laws and one of the founders of Harvard Law School's National College for DUI Defense.

Interference from police radios skew breathalzyer results, a burp or a cough can effect readings, and the machines, if they are to work properly and accurately, must be recalibrated and have their testing solutions changed every 30-45 days, he says.

Field sobriety tests, those ridiculous roadside gymnastics, are equally questionable and unreliable when trying to determine a driver's dexterity or impairment level, he says.

Studies from the Southern California Research Institute conducted in 1975, 1977, 1981 and 1993 found the walk-and-turn portion of the test is 68 percent reliable; the one-leg stand is 65 percent reliable; and, the horizontal-gaze nastigmus or HGN test is 77 percent reliable.

"Where else in the world of American criminal justice do you let 77 percent to be admissible to convict someone? If DNA tests were only 77 percent matching, do you think we'd start letting murderers and rapists out of prison?" he asks.

If you want to catch and convict impaired drivers while exonerating responsible social drinkers, do away with blood, breath and urine tests, and forget about field sobriety tests, Koffel suggests. Install video cameras in all police cruisers and "let the prosecutor, the judge, and the jury, and defense attorneys see exactly what the cop saw that night…if they did that I'd have to find another area of law to practice," he declares.

Proposed new DUI laws are equally ominous and worse still, there seems to be no way of stopping them save for appealing to higher courts with the hope of getting them over turned, he says. The last big legal fight was in 1996 and went as far as the U.S. Supreme Court over the legitimacy of sobriety checkpoints. The Constitution lost.

Stan Worthington, a former Indiana State Trooper who set up the Hoosier state's first sobriety checkpoint in the early 1980s says they're a waste of time and resources.

"I don't see the benefits of a DUI roadblock. When you've got a roadblock, anyone concerned about being stopped is going to flee," he explains.

Checkpoints are a waste of manpower, do little to curtain the real problem-repeat offenders, and create unnecessary risks, he says.

Worthington is at odds with those still active in the patrol and disagrees with the Supreme Court ruling about the legitimacy of checkpoints.

"If you're going to set up a road block, do it for a specific reason. You don't set up a road block to stop everyday citizens," he says.

Worthington admits he's never been a big fan of MADD and believes their efforts are ultimately intended to ban all alcoholic beverages from the road-the guy who had a beer at a baseball game and the couple who savors a glass of wine over dinner.

"You've just got to know your limits," he says.

It all depends on how you define impairment

Most are under the impression there is a legal limit for the level of alcohol concentration in the bloodstream. The thinking or doctrine is: It takes one-hour for one ounce of alcohol to process through the liver, and so one drink per hour is within the safe or tolerable standard to operate a motor vehicle. By law, if you test below a blood alcohol concentration limit of 0.08, you won't be arrested and charged with drunk driving.

You can be arrested depending on the discretion of the officer, and let's not confuse theory with practice and what the law defines as "impaired".

Impairment varies from person-to-person. Driving while impaired is illegal. Period. And having any substance in your system that can cause impairment is grounds for arrest, including alcohol in over-the-counter cough medicine. Because of this broader definition and overzealous enforcement, whether you drink a single glass of Merlot within an hour, down four beers over the course of two hours, or slam two shots of tequila in four hours is irrelevant-if you are pulled over or have the misfortune of driving into a sobriety checkpoint, chances are you will be arrested and charged with drunk driving.

Take for example 72-year-old Willis Van Devanter. The grandson of a U.S. Supreme Court Justice and rare book appraiser was on his way home from a soiree in Washington D.C.'s fashionable Georgetown area after consuming two glasses of wine and made the mistake of driving into a sobriety checkpoint. Van Devanter was handcuffed, fingerprinted and photographed at a mobile booking station nearby and given a breath test along with 40-60 other motorists that night in 1997. Even though his BAC tested at .03, Van Devanter was charged and later acquitted. Five years later he goes to renew his driver's license in Maryland and is denied because his name has been added to the National Drivers License Register.

By federal law, state licensing agencies have the option of giving the feds the names of those who have been convicted of a serious traffic violation, and those who have had their license cancelled, denied, revoked, or suspended.

"You're never even told about it," Van Devanter says, adding: "There's no due process. You're suddenly ostracized."

Submitting to a breath test only gives police and prosecutors the chemical evidence they need to prove you have alcohol in your system and ensure your conviction.

Scan through your hometown paper and you'll periodically come across stories about judges who are repeatedly busted, but never convicted of DUI. They aren't skating through the system because of their connections or exalted position, but rather, because they know better than to take a breath test.

On a curious note, MADD has publicly stated they oppose the private sale of portable breath test units out of fear drinkers will use such devices to gauge their blood alcohol content before driving.

"There is no safe blood-alcohol level, and for that reason, responsible drinking means no drinking and driving," said then MADD President Katherine Prescott to the Chicago Tribune in 1998, and then in USA Today, she was quoted: "Lowering the legal [arrest] standard will be a deterrent for light drinkers as well as heavy drinkers."

Before a television audience in 1997, MADD President-elect Karolyn Nunnallee said: "We will not tolerate drinking and driving---period."

"What do I think of MADD?" Van Devanter says. "They're obnoxious people and out to stop all drinking altogether."

As of late January, he still relies upon his wife and daughter to drive him around and is making an appeal to Maryland licensing officials to correct their records and have his name removed from the national database.

More comprehensive databases should be implemented in the coming years, MADD says, and there is no difference between reprobates and people like Van Devanter.

"We don't make that distinction. A drunk driver is a drunk driver," Hardt says, adding: "We do feel there should be stricter sanctions for repeat offenders and those with higher-than-average BAC levels. That includes repeat offenders who drive under suspended licenses."

Hardt says cases such as Van Devanter are rare, and a computerized record system is necessary to "better track repeat offenders as they cross state lines," she says.

The Shape of Bad Things to Come

"Every proposed DUI bill passes, because no lawmaker will speak out against them," says Koffel, partly because there is no "drunk driving lobby", and legislators looking to shore up their bases are quick to sign off on "fast track" legislation without considering the Constitutionality or repercussions of the feel good, crack down laws they are crafting.

Bad laws are on the books and more are coming, he says.

In New Jersey, the right to a trial by jury has been eradicated for those charged with drunk driving. In Ohio, a bill that requires all first time DUI offenders to bear a specially designed yellow and red license plate on their vehicle is sure to pass, and in a recent decision, the Arizona Court of Appeals said police can arrest someone if they have reasonable grounds to believe that person had been in control of a vehicle while intoxicated.

Hardt says the laws MADD endorses and the legislation they propose aren't crossing the line on civil and Constitutional rights, and Prohibition is not what they're about.

"We'd lose half our members if we did that," she insists, adding most of the Moms who belong to the organization enjoy a glass of wine with dinner.

"We're not against adult drinking," she explains, and even though MADD applauds the beverage industry for promoting designated drivers, they still aren't doing enough.

MADD will not accept contributions from the beer and liquor industry, nor will they accept in-kind donations.

They have a vested interest in getting people to drink and drink more, and much of their advertising and marketing efforts are aimed at those under 21, she claims.

Koffel says the new Prohibition can partly be blamed on Bill Clinton and the temper of our time.

"We witnessed the excesses in the 1990s and we were repulsed by the stories coming out of the White House, staffers using cocaine, the sleaze, and so we've replaced Clinton with the ultra-conservative, stern-faced George W. Bush…If you think everything is cyclical we're kind of going back to a more conservative social agenda and naturally alcohol is going to be on it," he says.

So why play games with BAC per se laws? And why doesn't MADD just come clean and put their true agenda on the table?

Koffel said it is just another layer to convict someone, and like any other radical concept, in order to get change, you've got to start off small.

"You get a little here and you get a little there," he says. "People acclimate to the changes one law at a time."

"What you're going to see is a countervailing theory that's starting to prove itself out on college campuses. If you're going to remove alcohol from one place, it is going to pop up somewhere else. You can't get rid of alcohol in American society. We already tried that. Most America enjoys a moderate amount of alcohol. They're socially responsible drinkers. They know when to say when. We already know the effects of having too much to drink and driving, the injuries and the deaths. But we're also adults in a free society and we don't need the federal government to govern our morals whether drinking is bad."

Fuzzy Math

"There's still a lot of holes and many drunk drivers are slipping through the cracks of the system," Hardt says, adding "the government tells me someone can drive drunk up to 700 times without being caught."

The government studies and research MADD relies upon come from the National Highway Transportation and Safety Administration, and don't add up.

MADD claims lowering the BAC to .08 will save hundreds of lives each year and ballyhoo NHTSA studies, but the effectiveness of lowering the blood-alcohol limit and methodology of those studies were debunked in 1999 by the General Accounting Office.

"While indications are that .08 BAC laws in combination with other drunk driving laws as well as sustained public information efforts and strong enforcement can be effective, the evidence does not conclusively establish that .08 BAC laws by themselves result in reductions in the number and severity of crashes involving alcohol. Until recently, limited published evidence existed on the effectiveness of .08 BAC laws, and NHTSA's position-that this evidence was conclusive-was overstated," the GAO concludes.

Blackmail legislation from the Clinton administration in 1998 forced states to either lower their .10 BAC limit to .08 or lose federal highway funds.

2003 is the pivotal year as federal traffic safety programs are slated for reauthorization, and Congressional hearings are underway. Ten states have not passed administrative license revocation laws (meaning you automatically lose your license for one year by simply refusing to submit to a breath test) and 17 states have not passed .08 BAC per se laws-all 27 stand to lose hundreds of millions of federal highway dollars if they don't go along with MADD's agenda.

As for the actual number of Americans killed on the road by drunk drivers, those numbers too are grossly exaggerated, and it all depends upon how you define "alcohol-related".

Raw data available from NHTSA's Fatal Analysis Reporting System would suggest of the 41,945 traffic fatalities in 2001, 41 percent or 17,380 people were killed in alcohol-related crashes.

The definition of "alcohol-related" includes those whose BAC is between .01-.79 and includes accidents involving drunk pedestrians hit by sober drivers, drunk drivers who wrapped themselves around a tree or telephone poll, and those who were under the influence of substances other than alcohol.

The actual data shows that in 2001, of the 42,116 motor vehicle deaths that year, a little more than 16 percent involved a driver that had some level of alcohol in his system.

MADD About the Money

When it comes to getting legislation through state assemblies and Congress, the $46.9 million MADD reportedly raised in 2000 goes a lot farther than television commercials. The organization, which still presents itself as a grass-roots coalition, is one of the most powerful special interest groups in the nation and rivals People for the Ethical Treatment of Animals ($17 million in 2002) and Greenpeace ($25.1 million in 2001) when it comes to shaking down foundations and forging dubious alliances with corporations who have vested interests.

According to IRS filings, MADD received a five year $2.5 million gift from General Motors; $11.8 million form the Edna McConnell Clark Foundation in 1988; $10.2 million from the Communities Foundation of Texas in 1996; and, between 1999-2000, reportedly received $250,000 from Allstate Insurance and over $100,000 from Nationwide Mutual Insurance.

That doesn't mean MADD is money mad, Hardt says.

"We're still a relatively young organization, and we're made up of mostly volunteers," she went on to say, adding MADD's coffers and fund raising success is still below that of the top 100 charities in America.

Chances are they may never make the top 100 and as time goes on their practices as a "non-profit" may come under more intense scrutiny and criticism.

Money magazine reported in 1994 that half of the $38.2 million raised through telemarketing campaigns went back to the telemarketers, and in its 2002 Charity Rating Guide, the American Institute of Philanthropy gave MADD a C- and speculates the organization may be spending as much as 39 cents out of every dollar on fund raising.

In 2000, MADD spent $10.7 million on salaries and wages, $5.2 million on professional fund raising fees, and $2.8 million on travel, according to tax filings.

Gimme Some of that New Age Religion

Unlike other lucrative causes, MADD is more resilient and has something they hope will leave an indelible mark on the national psyche.

They have a religion. Their religion, that is. Abstinence is the gospel they quietly preach and it is packaged as a New Age version of old Puritanism. It reaches across political lines, connects with substance abuse counselors and suburban Soccer Moms, inspires educators and police officers, and artfully spurns critics.

"This country was always made up of three kinds of people: Teetotalers, drunks, and responsible drinkers. Not any more. There's no middle ground because of MADD," says John Doyle, executive director of the American Beverage Institute.

Ironically, the liquor lobby he directs employed MADD's original founder Candy Lightner at one time.

Doyle says MADD wants more restrictions and limitations on alcohol consumption with the ultimate goal of banning public consumption altogether.

"They won't come out and publicly say it, but that's where it's headed," he says.

One is hard pressed to win a public relations fight when faced with haunting televised images of a cute 8-year-old girl or doting 80-year-old Grandmother killed by a drunk driver, and no politician, however eloquent, can top the tearful pleas of the victim's family.

Until recently, there have been no counter groups, only a few paltry voices here and there. Humorist P.J. O'Rourke once suggested forming Drunks Against Mad Mothers, and might get a chuckle over some of the groups that have come together to oppose MADD.

One of them is Modern Drunkard Magazine, a Denver-based publication with a companion web site created in 1996 by Frank Rich.

Rich says: "We're all drunks, of course. We're very unique because we're pro-drinking. Its like a vacuum we feel needs to be filled and since we've started the response has been phenomenal."

Rich's group recently completed a soon-to-be-released comedy movie about drinking, and plans to publish a book teaching readers the legal intracacies to beat a drunk driving charge.

"MADD isn't concerned about getting drunk drivers off the road. They're concerned about their own little agenda," he charges.

Behind the grieving women that are MADD's public persona are corporate suits, he says, and that's slowly coming to the light of day.

While the major news media still doesn't take MADD to task, a groundswell is taking hold, he says, and more articles about their agenda are starting to hit print.

"It's been exposed before. It's a corporation. They're dictating policy to legislators and no one calls them on it. They control the suburban soccer Moms who vote and eventually their lies will come out," he says, summing it up as "religion dictating law."

America was founded by Puritans and built on alcohol, he laughs.

The neo-Prohibition MADD is trying to usher in will come to an end after five years, he predicts. But only after things get worse-like the old style Prohibition that empowered and enriched the likes of Al Capone.

"This time people are going to be more radical, possibly more violent. People are used to drinking. It's a part of life in the U.S. and the world over except for Islam," he says, adding: "And maybe if they were allowed to drink they'd rather get soused than become suicide bombers."

Man Enters Plea to Shooting Ross County Deputy

Chillicothe, OH--As potential jurors gathered in the Ross County Courthouse lobby Monday for the trial of a man accused of shooting a police officer, Jaiman "Jay" Reed Wackler pleaded guilty to charges in a last- minute hearing. His defense attorneys, Bradley P. Koffel and Joe Edwards, from Columbus, negotiated a last minute agreement with the Judge and Prosecutors that could result in Mr. Wackler receiving concurrent jail time on a pre-existing parole violation. Otherwise, the State was going to be recommending consecutive jail time that could add dozens of years to Mr. Wackler's sentence.

Wackler, 26, of Englewood, Fla., pleaded guilty to one count each of felonious assault and aggravated burglary -- both first-degree felonies -- and four counts of kidnapping -- all second-degree felonies.

Assistant Ross County Prosecutor Michael Ater said the state dropped the repeat violent offender specification as a part of the plea agreement. A pre-sentencing investigation and victim's impact statement was ordered for the Oct. 20 sentencing hearing. Ater said the state will recommend that Wackler receive 12 years in prison.

Although the agreement was reached minutes before the 12-person jury was selected, Ater said he was ready and willing to go forward with the trial.

"The state had a strong case. In this case, someone chose to enter a plea -- their constitutional right," Ater said.

The deal was welcomed by Larry and Robin Speakman, who said they were happy a trial was averted.

Their Londonderry home was the site of the March 2002 standoff. Wackler, armed, broke into their U.S. 50 home and took four people hostage, including his ex-girlfriend, April Thomas, her 3-year-old son, and the Speakmans, who are Thomas' mother and stepfather.

Officers from the sheriff's office tried for hours to peacefully end the standoff. However, during the hail of bullets from a shootout, Wackler shot Corporal Joe Addy.

Wackler was also injured, having been shot in the shoulder.

April Thomas and her family were not injured.

The Speakmans declined further comment until Wackler is sentenced.

After the hearing, Wackler was taken to the Ross County Jail, where he awaits transfer to a state prison. Wackler is currently serving the remainder of a six-year sentence for a 1996 felonious assault in Jackson County.

The Londonderry incident violated his parole in that case.

SELF-INTERESTS OF DOCTORS INCREASE HEALTH-CARE COSTS

Saturday, April 2, 1994
EDITORIAL & COMMENT 05A

Industries' propaganda campaign overstates the role malpractice-insurance premiums play. These expenses add up to less than 1 percent of the nation's total medical bill.

For more than a decade, the medical and insurance industries have waged a public-relations propaganda campaign that has perpetuated the perception that at the root of the health-care problem are medical-malpractice lawsuits and outrageous jury verdicts.

Insurers of health-care providers are well-financed. In 1991, insurance companies collected about $4.8 billion from the medical industry for malpractice insurance.

This may seem like quite a substantial sum, until the veil is lifted from the entire issue:

The medical industry cost the nation nearly $752 billion in 1991. This figure comes directly from the U.S. Department of Health and Human Services.

Putting things into perspective, insurance premiums paid by health-care providers equaled about 0.64 of 1 percent of the national health-care expenditures in 1991.

In other words, medical-liability insurance contributes less than 1 percent to the national health-care costs.

Where is the real excess that needs to be addressed in health-care reform? Doctor self-referrals.

Quite simply, many doctors have a financial interest in various clinics and other types of labs.

At least five recent studies of the practice of self-referral showed that self-referring doctors order testing up to eight times more often than other doctors, and self-referring doctors' costs were up to 7 1/2 times higher than when outside services were used.

When doctors self-deal, they have interests on both sides of the same transaction. Instead of attacking the rights of the consumer, why doesn't the health-care industry investigate a real problem?

Bradley P. Koffel
Columbus

SOBRIETY CHECKPOINTS ARE VIOLATION OF RIGHTS

Saturday, February 25, 1995
EDITORIAL & COMMENT 09A

I respond to a Dispatch article sometime back headlined, ''Grant is boon to checkpoints,'' wherein it was reported that the federal government gave Franklin County about $246,000 to fund partially the sobriety checkpoints. While there certainly is a need to combat drunken driving, it is alarming to know that police roadblocks are not only tolerated, but federally funded.

The Fourth Amendment to the U.S. Constitution and Section 14, Article I, of the Ohio Constitution, guarantee that ''the right of the people to be secure . . . against unreasonable searches and seizures, shall not be violated.''

In a 1990 Michigan case, the U.S. Supreme Court upheld the constitutionality of police roadblocks. What most people fail to realize is that on remand, the Michigan Supreme Court still found such roadblocks unconstitutional, based upon Michigan's Constitution, which, by the way, is similar to Ohio's. Moreover, many of our sister states have recognized the unreasonableness, ineffectiveness and unconstitutionality of police roadblocks.

Neither the magnitude of the drunken-driving problem nor the state's interest in eradicating it can be disputed.

However, not only is Ohio diluting every citizen's right to be free from searches and seizures, but also the state is failing to see that sobriety roadblocks are not effective in detecting and deterring drunken driving.

From May to September of last year in Franklin County, 12 roadblocks were conducted and 202,958 vehicles passed through. More than 9,000 vehicles were stopped. Seventy-three people were arrested for drunken driving, a less than 1 percent effective rate. Moreover, this statistic is misleading. I have personally represented several of those 73 motorists arrested for drunken driving, only to have their cases dismissed because there was no evidence of intoxication.

Meanwhile, as the article reported, roving patrols stopping motorists on presumably constitutional grounds were netting far more arrests for drunken driving than the roadblocks.

On the surface, police roadblocks sound good for combating this social ill. However, all of us need to face reality: Roadblocks patently violate one of our most cherished rights and are inadequate in identifying and apprehending drunken drivers.

Bradley P. Koffel, attorney
Columbus

TEST RESULTS HARD TO ARGUE WITH

Friday, September 1, 2000
NEWS 09A

By Michael Hawthorne
Dispatch Staff Reporter

Defense lawyers hate the machine -- and it's easy to see why.

The State Highway Patrol boasts an 80 percent conviction rate in drunken-driving cases, most of which include evidence collected by a Breathalyzer, the trade name for a machine that measures the level of alcohol in a person's body.

Rulings by the Ohio Supreme Court have deflected a series of challenges to the machine _ in use in Ohio since 1968 _ even though defense lawyers and the experts they subpoena often argue that the results can be unreliable.

State lawmakers are being asked to discourage test refusals by increasing criminal penalties and denying work-related driving privileges for motorists who refuse the tests. Defense lawyers are lobbying for more tools of their own: Dual tests or video cameras in police cruisers to record traffic stops.

"That would put us out of business," said lawyer Brad Koffel, who represents many DUI defendants.

A motorist can be so nervous that he or she belches up stomach contents that produce inaccurate readings, attorneys say. Or radio frequencies can interfere with the calculations.

But unless they can prove that the machine wasn't calibrated correctly, lawyers are stuck with it. So they do the next best thing: They advise their clients not to blow into it.

"Most competent lawyers are not going to allow their clients to take a test that they can't challenge later in court," said William Meeks, a Columbus defense attorney who has fought the machine for years. "To do so is practically malpractice."

"Very few people can afford to hire the experts needed to challenge the test," said Cleve Johnson, another local defense lawyer. "As a result, the poor man's defense is to not take it."

A panel formed by the Ohio Department of Health in the early 1990s recommended that motorists be allowed to take a second alcohol-breath test if they don't like the results of the first.

The National Safety Council has recommended the dual procedure, and about half of the states require it.

In Ohio, the idea has caught on only in Upper Arlington and Circleville.

In those two cities, if the difference between the two tests is less than 0.02 grams per 210 liters of breath, the lower amount is used as evidence. Additional testing is required when a greater discrepancy is recorded.

"I want people to feel the test is fair," said Judge John R. Adkins of Circleville Municipal Court.

Said Upper Arlington Police Lt. Michael Brining: "Offering the second test helps us build a better case. It makes a lot of defense attorneys go away."

If the test is done correctly, the last bit of air to escape as a person exhales is a reliable indicator of their blood-alcohol level, said Alfred Staubus, an associate professor of pharmaceutical chemistry and a forensic-toxicology expert at Ohio State University.

The lungs have thin capillaries that allow oxygen to be transfered into the blood and carbon dioxide to be expelled back. In the process, Staubus said, small molecules such as alcohol also pass through the membrane.

"It's not the machine that's wrong," said Staubus, who has acted an expert witness for defendants and prosecutors in DUI cases. "But the first test can produce an artificially high blood-alcohol level if a person has stomach reflux."

Law-enforcement officials contend that the current system accurately indicates blood-alcohol level and a motorist's ability to drive.

"We have no reason to doubt the validity or accuracy of the first test," said Sgt. Gary Lewis, a patrol spokesman.

When motorists refuse the tests, prosecutors usually fall back on an officer's description of their condition and the results of field sobriety tests.

Juries likely will believe motorists are drunk, the thinking goes, when they've failed to walk a straight line, stand on one leg or follow a small object with their eyes.

Established procedures must have been followed, though.

Last month, the Ohio Supreme Court ordered a new trial for an Erie County woman because a trooper conducted a field test on "a gravel-covered, uneven surface of road when a flat surface is required."

Two Wayne County municipal judges in northeastern Ohio have a novel approach to dealing with motorists who refuse breath tests: They encourage police to fax them a request for a search warrant to obtain blood samples from the suspect.

Defense lawyers generally agree that blood tests are the most accurate method of determining blood-alcohol levels.

"We've got fax machines at home and will grant an officer's request at any time, as long as they are drawn up properly," Judge D. William Evans said.

His colleague, Judge Stuart Miller, said using blood tests and denying driving privileges are two effective ways to get drunken drivers off the road.

"Unless the prosecution has a damn good reason, I'm not going to allow people to use test refusals to circumvent the law," Miller said. "It just destroys the whole purpose behind the statutes."

Verbal Assault on Judge is Wrong According to Defense Attorney

As an attorney who frequently practices before Judge Michael C. Hoague in the Delaware County Municipal Court, I have remained on the sidelines while watching the news media portray him as a tyrannical jurist.

His decision last year to send an ostensible court order to another motorist was wrong. However, the recent attack on Hoague by The Dispatch (Sept. 12) is outrageous and possesses a complete disregard for the circumstances surrounding the tragic death of Hoague's mother.

Hoague has stated publicly and privately that his mother was killed by a drunken driver when he was a child. What exactly moved The Dispatch to assign two reporters to investigate this fact is beyond me.

The judge's mother was killed when he was 13 years old. The driver of the other car had a blood-alcohol level of 0.13 percent -- intoxicated by any state's current standards. The accident itself appears to have been too gruesome and overwhelming for a 13-year- old to comprehend.

As a person who, at a similar age, lost his father, I can completely understand that Hoague's family undoubtedly protected a young Michael Hoague and his siblings from each and every detail, delivering only the message of her death and an account that did not put the blame on their mother.

For The Dispatch baldly to assert that the judge's understanding of his mother's death is false, thereby impugning his veracity, is irresponsible.

When The Dispatch is ready to return to objective, fair reporting of whether Hoague is fit to be a jurist in Ohio, I would suggest that it interview attorneys who practice before him. Or has The Dispatch already done that and decided that the results did not fit its pre-existing profile of him?

Bradley P. Koffel
Upper Arlington

"This type of stigma is going to encourage defendants to do everything to avoid a conviction": Yellow plates will be given to DUI offenders with limited driving privileges starting Jan. 1

Convicted of DUI? Check out your license plate.

By Aaron Marshall / September 18, 2003

It won't be a scarlet letter "D" for drunk driver, but a scarlet-lettered Ohio license plate on a yellow background will distinctively brand the cars of thousands of Ohioans convicted of drunk driving in 2004.

Starting Jan. 1, under a little-known provision tucked into a recent traffic law overhaul measure known as Senate Bill 123, those convicted of drunk driving must place yellow license plates on their car in order to get limited driving privileges during the mandatory suspension period.

The effect will be dramatic for those who had thought their little run-ins with the police after too many beers could be kept on the QT.

Their drunk driving convictions now will be publicly broadcast in vivid yellow for all their family members, friends and neighbors to see.

Consider it a guaranteed conversation starter when you visit your folks on Turkey Day or when you pick up the kids from your ex-spouse's crib.

However, whether the law ultimately ends up applying to first-time offenders or not, the legislation will have a huge impact on the court system.

"Anything that comes with a public display of this type of stigma is going to encourage defendants to do everything to avoid a conviction," said defense attorney Brad Koffel, widely regarded as one of the state's top DUI attorneys.

"This might be a noble idea on the part of lawmakers, but they may not fully comprehend that piece of sentencing, more than anything else they've done, is going to encourage more litigation."

Under current law, a judge has the discretion to order an offender to put the plates on their car. However, it is practiced unevenly across the state and is most common in rural counties, Koffel said. Through Sept. 1 of this year, 1,526 yellow plates have been issued, according to Ohio Bureau of Motor Vehicles statistics, and only 57 in Franklin County.

After all, the yellow plates won't just be on for a couple weeks. A second time offender, for example, faces a mandatory suspension of 12 months. After the first 30 days, the offender could apply for limited driving privileges. If privileges were granted, the offender would be required to put the yellow plates on his vehicle.

In its current state the law applies the yellow plates to first-time drunk driving offenders. However, the provision targeting first-timers is a mistake, according to the head of the group who pushed for it.

"The result in the bill was unintended at least as it involves first-time offenders," said David Diroll, executive director of the Ohio Criminal Sentencing Commission. The commission-a group appointed by Ohio Supreme Court Chief Justice Tom Moyer-was the driving force behind the legislative overhaul of Ohio's traffic laws.

"As the bill was moving forward, I raised the issue in a packet of other things that needed to be addressed," said Diroll. "I think it just kind of fell by the wayside."

Republican state Rep. Scott Oelslager, the bill's sponsor, did not return calls to explain how this happened.

At any rate, Diroll said Oelslager has pledged to amend the bill this fall.

Diroll said he doesn't think the number of DUI trials will jump too much, provided that first-timers are eventually exempted. "The stakes are up enough that I'm not sure adding on these plates will matter," he said.

The Ohio Bureau of Motor Vehicles is bracing for an influx of convicted drunk drivers needing yellow plates next year and has ordered 22,000, according to Julie Hinds, the agency's spokeswoman.

"We will pretty much have to see how it goes," she said. Hinds said the plates are a "rusty yellow" and have six red numbers-no letters-designed to be distinctive to law enforcement.

Portable breath tester's accuracy rated inferior for use in court

By STEVE EDER
BLADE STAFF WRITER

The portable Breathalyzer machine that showed Monday that Ohio Supreme Court Justice Alice Robie Resnick was almost three times the legal limit for driving while intoxicated is widely used by Ohio police officers and law enforcement around the country.

The Alco-Sensor III is used to justify the arrests of drunken motorists nationwide, and the device has earned federal certification for more than two decades for its accuracy in measuring breath alcohol.

Still, readings from the preliminary breath tester can't be used as evidence in Ohio courts because of a 1980s ruling by the Ohio Department of Health. The department has maintained the device is reliable enough to establish probable cause for arresting a drunken driver but does not meet accuracy standards necessary to be considered evidence in court.

Dean Ward, the bureau chief for the department's Alcohol and Drug Testing Program, said there are too many factors that can sway the results - like temperatures, radio frequencies, and mouth alcohol. Mr. Ward contends the portable devices in squad cars, like the Alco-Sensor III, are not as accurate and consistent as the stationary systems used at police and patrol stations.

"We would never recommend it to be used as an evidential unit," said Mr. Ward, noting the device was used evidentially decades ago in Ohio for watercraft infractions. "For sure it would tell you whether someone consumed alcohol or not. What is at issue is the amount of alcohol."

But James Frank, who administers the breath-test program for the National Highway Traffic Safety Administration's research and technology office, said both the Alco-Sensor III and IV models have passed rigorous testing to meet federal evidential standards since the early 1980s.

"As long as it is properly administered and the officer knows how to use the device, I have full confidence in the Alco-Sensor devices," the research psychologist said. "If they are being properly used by the police agency, they should do a fine job."

Like Ohio, most states have ruled that preliminary breath tests can be used to provide probable cause for making an arrest. A few states - including California, Virginia, and Idaho - have permitted results to be filed as evidence in some cases. Concern about regular testing, calibration, and extensive officer training have caused critics to question its reliability.

Macquorn Forrester, the chairman of Intoximeters Inc., based in St. Louis, which makes the Alco-Sensor testers, said his products are often used evidentially in Russia, South Korea, and India. In Virginia, Mr. Forrester said judges allowed results of Alco-Sensor III tests to be used in court in a manslaughter case in which the accused motorist refused to submit to a stationary Breathalyzer test.

"This indicates the quality of the system can be justified in the court of law," Mr. Forrester said. "If that's all the evidence there is, the lawyers certainly have a game to play."

In Orange County, Calif., officers have administered more than 10,000 preliminary tests evidentially since 2001 using a customized model of the Alco-Sensor IV device, said Martin Breen, a senior forensic scientist with the county sheriff-coroner department. The device uses the same fuel-cell technology that supports the Alco-Sensor III, but it also includes a printer and a minicomputer.

"In the state of California, it is catching like wildfire," said Mr. Breen, who's met with law enforcement officials from other nations about implementing the device.

Mr. Breen said the field test saves time and reduces instances of suspected drunken drivers refusing to submit to the stationary test. Safeguards governing the device require officers to take multiple tests and to sample the surrounding air.

"It has eliminated a lot of the problems between the time of the stop and the time of the test," he said.

For Ohio attorneys, the tests remain merely a "confirming test" for police officers when arresting a motorist, said Brad Koffel, a Columbus-based lawyer who has defended thousands of drunken-driving defendants.

"It's one of the last things we look at," Mr. Koffel said. "If there are 10 items of importance, it is going to be No. 15 because no one can use it because they are not reliable."

Mr. Koffel said preliminary readings shouldn't leave the police cruiser but sometimes are recorded on police reports. He said he was surprised the results of Judge Resnick's test were made public.

"The lay person hears she tested twice the legal limit," he said. "Well, that's not true. It's not evidence. By definition, it can not be considered for guilt or evidence."

Ohio prosecutors, though, are holding out hope that could change and be used as another tool in convicting drunken drivers, said John Murphy, the executive director of the Ohio Prosecuting Attorneys Association.

"It would be nice if that were accepted and perhaps I'm sure it will one day when it has been proven to be as reliable as the normal test," Mr. Murphy said. "Apparently that hasn't happened yet, but I think it will be."

Contact Steve Eder at:
seder@theblade.com
or 419-724-6728.

States Seek Tougher Drunk Driver Penalties

By CARRIE SPENCER GHOSE Associated Press Writer
The Associated Press

COLUMBUS, Ohio Jan 19, 2006 — States are trying to toughen penalties for suspected drunken drivers who refuse to take a breath test, arguing motorists too often get a milder penalty than if they had provided evidence that could convict them.

Bills to lengthen license suspensions or make it a criminal offense to refuse a test are pending in five states, including Ohio, Massachusetts and Rhode Island, where the percentages of people refusing are among the highest in the nation.

Nationwide, an average of 25 percent of people pulled over on suspicion of drunken driving refuse to take a breath test, which is designed to estimate the amount of alcohol in the blood, according to the National Highway Traffic Safety Administration.

In every state but Nevada, the punishment is a suspended driver's license. Still, people who refuse believing they would fail a test might avoid a drunken driving conviction and jail time.

"We are seeing cases where people are being stopped 10, 15, 20, 30 times," said Massachusetts Rep. Todd Smola. "Every single case they are refusing the breath test, paying their lawyer a few bucks."

Defense attorneys and motorist groups oppose stricter penalties, and some lawmakers don't see the need.

A proposal in Illinois would increase suspensions to one year from six months. Most drunken driving cases are handled within that six months, said Rep. Robert Molaro, a Democrat from Chicago. A convicted driver would then get a more severe penalty: a revoked license. An acquitted motorist would still be punished by the suspension, which would be unfair, he said.

"What do we gain by going to a year? I don't get it," Molaro said.

In all, bills were introduced in 15 states in 2005. Some didn't make it to the debate stage. Maryland, Montana and Virginia approved stricter punishment, with Montana adding up to a $2,000 fine and two days to six months in jail if a person is caught driving with a license that was suspended for refusing a test, according to the National Conference of State Legislatures.

In Ohio, a Senate-passed proposal to double the length of most license suspensions now goes to the House. About 40 percent of Ohio suspects refuse the test, the sixth highest among 41 states where data was available, according to a study by the NHTSA. That's despite the state being among 19 that already adds penalties such as jail time to the license suspension.

Motorists refuse tests for many reasons. Maybe they have been drinking and fear failing. Some have heard stories that the machines record some diabetes symptoms as drunkenness. Those with previous drunken driving convictions might be trying to avoid a felony conviction from another arrest.

"The major problem is not with the first-time people," said Martin Aubry, municipal prosecutor in Perrysburg in northwest Ohio. "The more convictions you've had, or the more times you've been stopped, you might learn from your previous experience not to take the breath test."

Defense attorneys and motorist groups say it's unfair to force someone to face a criminal conviction for a test that might be inaccurate.

The machines are supposed to exclude results measuring artificially high alcohol levels if the person vomits or burps, increasing the amount of alcohol in the mouth. That alcohol hasn't yet reached the blood, and thus the brain.

Attorneys question the overall reliability of the machines. They say a direct blood test is the fairest and most accurate test.

"It's not what protects the presumption of innocence and what supports the burden of proof," said Brad Koffel, a Columbus defense attorney.

Prosecutors and law enforcement officers said they routinely test and calibrate their machines, and watch suspects closely for 20 minutes before testing to ensure no alcohol is brought up to the mouth.

The states with the lowest refusal rates have among the toughest penalties, with jail time in California and Nebraska and revoked vehicle registrations in Hawaii and Maine.

On the Net:
www.nhtsa.dot.gov
www.legislature.state.oh.us/bills.cfm?ID126SB141
www.mass.gov/legis/bills/house/ht00/ht00942.htm

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