Frequently Asked Questions
The following information includes frequently asked questions about criminal, DUI, or juvenile cases. The answers stated are general in nature and are not intended to apply to every situation. Each case is different and carries with it its own set of circumstances which must be taken into consideration by competent legal counsel. By contacting James F. Bogen Attorney at Law, you can receive a personal consultation regarding your specific criminal, DUI, or juvenile case.
- • Not make promises about the outcome of your case. This is actually an ethical violation. An attorney may only promise you their best effort and discuss possible outcomes for your case. If an attorney makes any promises to you about any specific outcome for your case when you are considering who to hire (ex. by telling you they will beat your case or keep the charge off your record), ask them to put those promises in writing on their letterhead.
- • Guide your case through the court where your case is being heard. In addition to written rules that must be followed, there are often many “unwritten rules” that go along with each court or jurisdiction. A good attorney will be able to effectively navigate through all of this.
- • Educate you about legal rules and regulations that apply to your case that you would most likely never find on your own. Many rules and laws about criminal cases are buried within pages of regulations, laws, and prior court opinions. If you were to represent yourself, you could very easily never know about certain regulations or laws that could help your case, much less how to properly interpret them.
- • Be able to more effectively gather and evaluate evidence that is going to be used by the prosecution, and talk to prosecuting witnesses. Understandably, many witnesses are often much more willing to talk to an attorney than to a person who is charged with committing a crime against them. An competent attorney will know the best ways to do these things.
- • Determine if any investigators or experts would help in your case, and find and hire the right ones. The right investigators can not only investigate the alleged crime, but also the witnesses that the prosecution is going to call to testify. If an investigator can find evidence that would make a witness’s testimony less believable, or if an expert can present evidence that could show your innocence or rebut the State’s theory of your case, the benefits speak for themselves.
- • Explain some of the “hidden costs” that come along with a conviction for your criminal of DUI charge. For example, if you represent yourself and plead guilty as charged to try to save time and money, you may find the conviction costing you a job or your professional license (ex. teaching license).
- • Keep you updated about developments about your case and return calls or messages in a timely manner.
- • Provide you with a reality check. Defense attorneys often know what is going on much better than you will during your criminal or DUI case. They are better able to remain objective throughout a proceeding, which is necessary to provide essential assessments and reality checks. These are essential when a defendant is trying to decide what to do while their case is pending and whether to go to trial or accept a plea bargain offered by the prosecutor.
- • If you do not wish to contest the charges against you, your defense attorney will talk to the prosecutor to negotiate a plea bargain. Plea bargains usually reduce the potential punishment. However, prosecutors are often unwilling to negotiate with defendants that represent themselves.
- • In the event that you are convicted, your defense attorney may be able to mitigate your punishment by suggesting a viable alternative sentence. For instance, instead of going to prison, your criminal defense attorney may be able to argue for drug treatment.
While this may make for good drama on television, the answer is no. An attorney does not have any legal authority over police officers and most certainly does not have the legal power to order them to release a person from their custody.
Again, while this may make for good drama on television, the answer is no. Courts have held that any disagreement about the facts of a case must be addressed at trial, not in a pretrial motion. Even if there are legitimate questions about the evidence, barring something obvious like the discovery of a video recording of the incident that absolutely refutes the State’s case (see Case Example #11 on this website), a case will not be dismissed “for lack of evidence” before trial.
No. Miranda rights don’t have anything to do with whether an arrest is legal or not.
Miranda rights are simply a warning police officers have to give you, that they are about to question you and what your rights are. The whole idea behind this law is to prevent coerced confessions or other police abuse.
These are only required in “custodial interrogations.” This occurs whenever police question someone who is either under arrest or what the law calls the “functional equivalent of arrest.”
If the police don’t read your Miranda rights when they should, the arrest is still valid. The legal effect is that any statement you made will not be admissible in court. One more thing that should be noted is that even if a statement is ruled inadmissible, the State can still use other evidence it may have to prosecute the case
No. Contrary to what you may see on T.V. shows, even if the attorney is pounding on the door to the interrogation room and yelling that his client is not answering any questions, the officers are not required to stop questioning the suspect. Under the law, only the suspect may invoke his right to remain silent and his right to an attorney, and he must do so explicitly and unambiguously. Simply stating something like “I wish to remain silent and I want an attorney” without voluntarily reinitiating a conversation with the officers is enough to do this.
No. In fact, the law allows undercover cops to lie to you about anything, including whether or not they are really a cop. If this myth was true, then no undercover operation by law enforcement would ever be successful.
Because cars can easily be moved to destroy evidence and are usually in a public place, courts have ruled that police must have probable cause to search your car (unless you agree to it being searched). This could be the sight of drugs in plain view or the smell of marijuana coming from the interior. Police can also have a drug dog sniff around your car as long as they don’t detain you too long.
Yes. Even though the penalty for a marijuana ticket is only a fine of up to $150.00 in Ohio, there are more serious consequences that most people are unaware of. First, when you pay the ticket by mail or plead “guilty” or “no contest” to a marijuana ticket, your driver’s license is suspended for at least 6 months. Things get even more complicated when potential employers run a background check on you, because the marijuana ticket will show up as a “Drug Abuse” or “Drug Possession” charge, and the background check printouts do not differentiate between marijuana tickets and felony drug possession/abuse charges for harder drugs like cocaine or heroin.
Bottom line, if you get a marijuana ticket, consult an attorney before you do anything. Your case can be examined to determine if there are any legal or factual defenses to the ticket, and an attorney is typically in a better position to try to get the charge amended. The consequences for ignoring this advice can have a negative effect on employment and educational opportunities (i.e. your future).
Yes. A teacher, administrator, coach, or other person in authority employed by or serving in a school, who is not enrolled in and does not attend that school, who has sexual relations with a person who is enrolled in or attends that school, is guilty of Sexual Battery, which carries up to 5 years in prison a maximum fine of $10,000.00, and mandatory sex offender registration every 90 days for the rest of their life.
These DUI stop tips are general considerations and are not specifically tailored to any particular situation. Following these tips does not guarantee that you will not be arrested for DUI, and it does not guarantee that you will not be convicted of DUI. If you have questions about a specific situation, it is advisable to speak to an attorney before deciding what to do.
- 1.Have your license, proof of insurance, and registration ready to hand to the officer before he approaches your vehicle. If you try to retrieve these things after he asks you for them, when you are very likely nervous, there is a good chance that he could write on his report that you were “fumbling” through your wallet or purse to try to retrieve these things. Officers treat this as a sign of impairment.
- 2.Be polite. If you are rude to the officer when you are stopped, the State will argue that this is evidence of impairment. Being rude and/or argumentative with the officer will never help your case. Ever. You should also be on your best behavior if the officer leaves you alone in the back of the cruiser. Many police departments have cameras in their cruisers. If you act up in the back of the cruiser even when the officer is not present, this will be in video, and the State will also use this to argue that you were impaired.
- 3.Do not answer any questions about where you were or any questions about drinking (i.e. how much you have had to drink or what you have had to drink). Politely tell the officer that you do not wish to answer any questions without an attorney present.
- 4.Do not consent to a search of your vehicle or your person.
- 5.Exit the vehicle when the officer asks you to. Take care not to pull yourself up or brace yourself with your door when exiting the vehicle. Officers and prosecutors treat this as another sign of impairment.
- 6.Do not take any roadside tests, the breath test, a urine test, or any other test without speaking to an attorney first. Politely make it clear to the officer that you do not wish to take any tests before speaking to an attorney. If an officer is investigating you for DUI by asking certain questions or speaking of certain tests, it is a pretty good bet that the officer has already decided to arrest you anyway and is just trying to build evidence for prosecutors.
- 7.Remember that if the officer already suspects you of DUI, you are very likely going to be charged with it and have an automatic suspension of your drivers license no matter what you do at this point. There is no “one size fits all” advice for these situations, and it is advisable to speak to an attorney before deciding what to do when you are suspected of DUI.
A first-time DUI conviction is normally charged as a misdemeanor, not a felony. However, if someone was injured as a result of the drunk driving, the charges can be elevated to a felony. If anyone dies as a result of drunk driving, the defendant can be charged with vehicular manslaughter. Further, a DUI conviction will likely be raised to a felony if it is the driver's fourth DUI offense in six (6) years, sixth in twenty (20) years or the driver has had a prior felony DUI offense within 10-years of the new charge. The length and punishment received for a DUI conviction depends greatly upon whether it is charged as a misdemeanor or a felony. For example, misdemeanors carry the possibility of incarceration in the county or local jail for one year or less; felonies usually require a state prison term for more than a year.
A DUI conviction may affix criminal penalties such as fines, jail, probation, and/or community service. There are mandatory minimum penalties for first-time offenses and increased penalties for each additional offense thereafter. Conservative Judges and Prosecutors will seek lengthy jail sentences for multiple offenders—especially for those who are still on probation for a prior offense. It is therefore critical to have an experienced DUI Attorney who is familiar with the Court you are assigned to and how to avoid harsh jail sentences.
The severity of criminal penalties will vary according to the circumstances of the offense that include, but are not limited to: whether the driver has a history of DUI violations, whether the driver was operating a commercial vehicle at the time of the DUI, whether the DUI violation occurred while there was a child in the vehicle, whether the DUI violation occurred simultaneously with another dangerous moving violation; i.e. reckless driving, whether the DUI violation involved a car accident in which property damage occurred, whether the DUI violation involved a car accident in which another person was injured or killed, and whether the driver was under the legal drinking age at the time of the DUI violation.
Now, more than ever, a multiple offender needs an attorney dedicated to DUI defense. An attorney who practices only or predominately in DUI Defense can guide you through the legal process in ways that could substantially reduce any suspension imposed by 50-100%, even if your case cannot be won outright. Please contact James F. Bogen Attorney at Law today to learn more.
If you refused a chemical test or failed to complete a chemical test, you face an automatic one-year suspension from the Ohio BMV. There are many successful ways to defend a Refusal Case. The officer is required to properly advise you of the consequences if you refuse and many officers fail to give the required admonition correctly or they may confuse a driver. Officers will also routinely and improperly deny a driver the right to take and complete a breath test. However, it is also important to keep in mind that refusing a chemical test will not automatically get your DUI charge dropped. In fact, it may motivate prosecutors to seek harsher consequences in your case.
If you fall within any of the following categories you should consult an attorney who concentrates on DUI defense:
- DUI Drivers Who Injure Or Kill Others
- DUI Drivers Who Were Involved In An Accident
- DUI Drivers With Prior Convictions
- DUI Drivers Who Have Refusals Alleged
- DUI Drivers Who Have Levels Of 0.17% or Greater
- DUI Drivers Who Hit And Run
- DUI Drivers On Probation
- DUI Drivers Under The Age Of 21
- DUI Drivers Who Were Speeding In Excess Of 30-Mph Of The Posted Speed Limit
- DUI Drivers Who Have Children Under 14-Years Old In The Vehicle
- DUI Drivers With Medical Conditions That Could Affect Field Sobriety Testing
- DUI Drivers With Medical Conditions That Could Affect Chemical Testing
- DUI Drivers Who Were Stopped By Police Within 1 Hour Of Last Drink
- DUI Drivers Who Were Stopped At Checkpoints
- DUI Drivers Who Were Stopped By Police Without Cause or Reasonable Suspicion
- DUI Drivers Who Feel That They Were Not Impaired By Alcohol Or Drugs
- DUI Drivers Arrested For Driving Under The Influence Of Prescription Medication
- DUI Drivers Who Have A Low BAC (0.08% Or Lower)
- DUI Drivers Who Risk Job Loss If Drivers License Is Suspended Or If Convicted Of DUI
- DUI Drivers Who Hold Commercial Drivers Licenses (CDL)
Judges in Ohio will treat some of these drivers differently, from their initial appearance in Court to the final sentence that is imposed. Some of these differences are required by law, such as mandatory minimum jail sentences for certain offenses or for multiple convictions; others are at the discretion of the individual judge. Many judges will set additional bail for multiple offenders and remand them into custody until a bond is posted. Drivers who are currently on probation will have their probation revoked and a probation violation hearing will be set. A probation violation for a prior offense could lead to additional jail time.
The gymnastics that you were asked to perform on the side of the road under abnormal conditions were not designed to objectively determine whether you were in fact impaired by alcohol. Police and prosecutors use them to collect evidence against you. They cannot be passed. They are judged by negative scoring; thus, you get no credit for doing things correctly. You can do a test perfectly and still fail the test because the Officer thought you performed in a "slow deliberate manner."
Police in Cincinnati, Ohio routinely use field exercises that were rejected after exhaustive studies under expensive federal grants. These include the following: THE ALPHABET TEST; THE FINGER COUNT TEST; COUNTING BACKWARDS; TOUCHING FINGER TO NOSE TEST; MODIFIED BALANCE TEST—ESTIMATE 30 SECONDS WITH EYES CLOSED AND HEAD TILTED BACK.
These Field Sobriety Tests are not scientific or reliable. In many cases in Ohio, these tests are conducted by police officers in a manner which is not approved by the National Highway Traffic Safety Administration.
Proper cross-examination of the arresting officer can demonstrate that these exercises do not predict impairment for the purposes of driving a motor vehicle. The scientist hired by the National Highway Traffic Safety Administration, Marceline Burns, has admitted that the field tests do not measure impairment. She has also admitted that they are unreliable unless administered in strict compliance with standardized testing procedures.
A recent published scientific study evaluated 100 videotapes of police conducting the follow the pen eye test and found that each and every officer performed the test wrong. Cross-examination of police officers with their very own training manuals routinely demonstrates their lack of knowledge and skill.
10 Ways to Discredit Field Sobriety Tests:
- 1. Field Sobriety Tests Are Not Scientific
- 2. The Officer Was Not Properly Trained
- 3. The Officer Did Not Use Standardized NHTSA Tests
- 4. The Officer Did Not Properly Instruct You On How To Perform Tests
- 5. The Officer Did Not Use Objective Standardized Scoring Criteria
- 6. The Officer Had You Perform The Tests Under Improper Conditions
- 7. Your Age Or Weight Make You An Improper Candidate For Tests
- 8. You Have A Physical Disability That Makes You An Improper Candidate For Tests
- 9. You Have A Psychological Condition That Makes You An Improper Subject For Tests
- 10. The Officer Lied About Your Performance On The Tests
The Validity of Breath Testing Are based upon Vast Array Of Assumptions That Can Be Attacked By An Experienced DUI Attorney In A Wide Variety Of Cases.
- 1. The machine is in proper working order and has been properly calibrated. Even if everything is in proper working condition, there can be an acceptable variation of +/- 0.02%. If your result is a 0.10%, that's a 20% error factor. How would you feel if the altimeter of an airplane was 20% off?
- 2. The sample was properly obtained. The law requires that you be under continuous observation for 20 minutes prior to your breath test to prevent "MOUTH ALCOHOL". If the operator of the breath device did not have you under continuous observation for 20 minutes prior to testing, your test may be invalid. Even if you were observed, you may still have medical conditions that may make you an improper candidate for breath testing. These conditions include common ailments such as heartburn and gum disease.
- 3. The sample was obtained after defendant absorbed all the alcohol. Breath testing assumes that the subject is post absorptive. This is important because the machine is calibrated to multiply the breath result by 2100 to calculate your blood alcohol level. If you were still absorbing alcohol, this would tend to significantly over report your true blood levels.
- 4. The temperature of the defendant’s breath was 34 degrees centigrade. State of the art breath testing equipment actually measures the temperature of your breath and will subtract any false high result due to elevated breath temperature. Studies done with breath testing equipment establish that the real average breath temperature for arrestees in DUI cases is closer to 35.5 with readings actually over 37. This alone would cause a false high of between 10-to-20%.
- 1. The Machine Was Not Properly Operated
- 2. The Machine Was Not Properly Maintained
- 3. The Machine Was Not Properly Calibrated
- 4. The Machine Was Affected By Radio Frequency Interference (Police Radio etc.)
- 5. The Machine Has An "Acceptable" Range Of +/- .02%
- 6. Your Body Temperature Was Greater Than 98.6
- 7. You Were Tested Within 3 Hours From Your Last Drink
- 8. You Have Medical Or Dental Problems That Make You An Improper Candidate For Breath Testing
- 9. The Officer Did Not Have You Under Continuous Observation For 20 Minutes Prior To Giving You The Breath Test
- 10. Your Symptoms And Drinking Pattern Are Inconsistent With The Test Result
10 COMMON CHALLENGES TO BREATH TESTS:
The defense of a DUI case requires specialized knowledge about physics, chemistry, biology, anatomy, toxicology, pharmacology and how these scientific disciplines interrelate. Chemical testing for blood alcohol levels assumes that the subject is a normal, healthy average person. There are countless medical conditions, which can affect the accuracy of chemical testing and the appropriateness of field sobriety exercises. The following are examples of medical conditions that could effect DUI testing:
- • Periodontal (Gum) Disease
- • Dentures
- • Faulty Bridge Work
- • Gastric Reflux Disease (Heartburn)
- • Flu
- • Fever
- • Pre-Menstrual/Menstrual
- • Diseases of the Lungs
- • Heart Disease
- • Accidents With Air Bags
- • Diabetes
- • Inner Ear Conditions
- • Attention Deficit Disorder
- • Pre-Existing Injuries to Back, Legs, Etc.
Pilots are required by the Federal Aviation Agency (FAA) to report a DUI arrest and administrative license suspension (ALS) within 60 days under FAR 61.15(e). There is also an obligation to disclose this on the Application for Airman Medical Certificate on an ongoing basis. If you are convicted of the DUI charge and you receive a driver’s license suspension from the court, this should be reported to the FAA as well in a supplemental disclosure.
This disclosure must be made to the FAA via Certified Mail to the FAA at the following address: FAA, Civil Aviation Security Division (AMC-700), P.O. Box 25810 , Oklahoma City, OK. 73125. There is no official form for this. All that is required is a letter containing the following information: 1) your name, address, date of birth, and airman certificate number; 2) the type of violation that resulted in the conviction or the ALS; 3) the date of the conviction or ALS; 4) the state that holds the record of conviction or ALS; and 5) a statement of whether the ALS resulted from the same incident or arose out of the same factual circumstances related to a previously reported ALS.
Either you or your attorney may file the report. Just be sure that the required information is included and that the envelope is postmarked no later than the 60th day. If you are eventually convicted of DUI, or your license or privilege to drive is suspended, or both, you must also disclose that information on Block 18.v. of the Application for Airman Medical Certificate every time you renew your medical.
If your DUI conviction is your first, the FAA typically will not take any action of its own. However, if you are arrested for a second DUI within 3 years of the first, and as a result you suffer a subsequent ALS, the FAA is more likely to get actively involved. In that event, the FAA could suspend or revoke your pilot’s license.
If you fail to disclose the required information on your medical application, it can result in revocation of your medical certificate. Any falsification is also a felony, subject to up to 5 years in prison, a $250,000 fine and revocation of pilot certificates and ratings. It may also result in the suspension or revocation of your airman certificate. Under Part FAR 61.15(f), failure to comply (report) is grounds for denial, suspension, or revocation of any authorization, certificate, or rating for a period of up to one year.
- Not make promises about the outcome of your case. This is actually an ethical violation. An attorney may only promise you their best effort and discuss possible outcomes for your case. If an attorney makes any promises to you about any specific outcome for your case when you are considering who to hire (ex. by telling you they will beat your case or keep the charge off your record), ask them to put those promises in writing on their letterhead.
- Guide your case through the court where your case is being heard. In addition to written rules that must be followed, there are often many “unwritten rules” that go along with each court or jurisdiction. A good attorney will be able to effectively navigate through all of this.
- Educate you about legal rules and regulations that apply to your case that you would most likely never find on your own. Many rules and laws about criminal cases are buried within pages of regulations, laws, and prior court opinions. If you were to represent yourself, you could very easily never know about certain regulations or laws that could help your case, much less how to properly interpret them.
- Be able to more effectively gather and evaluate evidence that is going to be used by the prosecution, and talk to prosecuting witnesses. Understandably, many witnesses are often much more willing to talk to an attorney than to a person who is charged with committing a crime against them. A competent attorney will know the best ways to do these things.
- Determine if any investigators or experts would help in your case, and find and hire the right ones. The right investigators can not only investigate the alleged crime, but also the witnesses that the prosecution is going to call to testify. If an investigator can find evidence that would make a witness’s testimony less believable, or if an expert can present evidence that could show your innocence or rebut the State’s theory of your case, the benefits speak for themselves.
- Explain some of the “hidden costs” that come along with a conviction for your criminal of DUI charge. For example, if you represent yourself and plead guilty as charged to try to save time and money, you may find the conviction costing you a job or your professional license (ex. teaching license).
- Keep you updated about developments about your case and return calls or messages in a timely manner.
- Provide you with a reality check. Defense attorneys often know what is going on much better than you will during your criminal or DUI case. They are better able to remain objective throughout a proceeding, which is necessary to provide essential assessments and reality checks. These are essential when a defendant is trying to decide what to do while their case is pending and whether to go to trial or accept a plea bargain offered by the prosecutor.
- If you do not wish to contest the charges against you, your defense attorney will talk to the prosecutor to negotiate a plea bargain. Plea bargains usually reduce the potential punishment. However, prosecutors are often unwilling to negotiate with defendants that represent themselves.
- In the event that you are convicted, your defense attorney may be able to mitigate your punishment by suggesting a viable alternative sentence. For instance, your criminal defense attorney may be able to argue for drug treatment instead of prison.