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What Field Sobriety Tests Are Used In OVI Case?

Field sobriety tests in OVI cases can determine innocence, guilt, and even get the case thrown out.  The National Highway Traffic Safety Administration (NHTSA) has a manual that sets forth the three major field sobriety tests and sets forth uniform standards for such testing.  The tests consist of the Horizontal Gaze Nystagmus test, the Walk and Turn test and the One Leg Stand test. The Horizontal Gaze Nystagmus test (HGN) is often called the "pen test" or "eye test."  The HGN is performed with a pen, but can be performed with any “stimulus,” as long as it is held 12-15 inches away from the person’s eyes.  Contacts, glasses and head injuries can affect this test.  The manual sets forth minimum times for each portion of the test, all of which adds up to at least 96 seconds. The Walk and Turn is supposed to be performed on a flat surface.  It consists of a standing heel-to-toe position during the instructions, nine heel-to-toe steps, a turn and nine return heel-to-toe steps.  Existing leg and back injuries can affect one’s ability to perform this test. The One Leg Stand is also supposed to be performed on a flat surface.  It consists of holding one’s foot six inches above the ground while counting for a minimum of thirty seconds.  Existing leg and back injuries can affect one’s ability to perform this test. These are just a few of the requirements outlined in the NHTSA field sobriety testing manual.  An experienced criminal defense lawyer can help determine whether the police have complied with the manual and challenge the testing procedures in court. (more…)

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Posted by Daniel Gigiano - August 16, 2014 at 1:47 pm

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Are Sobriety Checkpoints Legal?

Can police use sobriety checkpoints to stop and check to see if the drivers may be driving under the influence of alcohol? In other words, are sobriety checkpoints legal?   The United States Supreme Court held that sobriety checkpoints are valid. In their decision, the Court found that the intrusion and inconvenience to individuals who are stopped is outweighed by the government’s interest in restricting drunk driving. Ohio courts determined that there are four factors to determining the legality of a sobriety checkpoint: (1) a checkpoint location must be selected for its safety and visibility to oncoming motorists; (2) adequate advance warning signs illuminated at night, must timely inform approaching motorists of the nature of the impending intrusion; (3) uniformed officers and official vehicles must be in sufficient quantity and visibility to show the police power of the community; and (4) policy-making administrative officers must make a pre-determination of the roadblock location, time, and procedures to be employed, according to carefully formulated standards and neutral criteria.   (more…)

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Posted by Daniel Gigiano - October 4, 2015 at 12:16 pm

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Westfield Center DUI Attorney

A Westfield Center DUI attorney represents individuals charged with OVI in Westfield Center. Misdemeanor OVI cases in Westfield Center are heard in the Wadsworth Municipal Court.  Felony cases may have initial hearings in Wadsworth Municipal Court, but are heard in the Medina County Court of Common Pleas.
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Posted by Daniel Gigiano - January 10, 2015 at 8:08 am

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Will Ohio Lower DUI Limit To .05

Will Ohio lower DUI limit to .05?  In March 2017, Utah’ legislature set up the state to become the first state to lower the legal threshold for drinking and driving to .05 blood alcohol concentration.  While states are looking to get more aggressive with DUI laws, such efforts can result in problems in the actual application of the law.  This articles examines the law and the impracticality of enforcing the law on the street and in the courtroom.

 

Proposed DUI Law Criticized

 

Critics have said the bill fails to address the real problem, which are the 77% of alcohol-related traffic deaths in Utah caused by drivers with a blood-alcohol content of 0.15 and above.  The proponent of the law said the problem with the 0.08 BAC law is that “it send the message that you can drink up to a certain point and then drive.”  The proponent then noted that several foreign countries have a 0.05 limit. 

 

Proposed DUI Law Problems

 

The field sobriety tests were designed to determine if someone is at a 0.10 BAC or above.  When states lowered the limit to 0.08, that already signaled a move away from criminalizing driving under the influence and towards outlawing drinking and driving.  A 0.05 BAC limit is simply another step in that direction.  Someone at 0.05 could very well pass the field sobriety tests.  If the person is not under the influence of alcohol, can that person be arrested?  If the person cannot be arrested, the request for a breathalyzer does not occur. 

 

Attorney Daniel Gigiano.  Experienced.  Aggressive.  Dedicated.

 

Attorney Daniel Gigiano was admitted to the practice of law in Illinois in 1993.  He immediately began practicing as an assistant prosecutor working in a courtroom that focused on major traffic cases, such as DUI and driving under suspension, spending over one year focusing on the many issues in these cases.  Attorney Daniel Gigiano then spent the next five years of his government practice working on misdemeanors, felonies, grand jury and preliminary hearings, juvenile delinquency cases, and abuse and neglect cases.  In 1999, he was admitted to practice in Ohio.  In 2000, he took his experience to a private practice in Wadsworth, Medina County, Ohio.  Attorney Gigiano has maintained his private practice in Wadsworth since that time.  Call now at 330-336-3330 if you need the services of an experienced Medina criminal defense attorney in Wadsworth.

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Posted by Daniel Gigiano - May 9, 2017 at 2:23 am

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Explanation of Ohio Bankruptcy & Foreclosure Law White Paper by Daniel Gigiano


Daniel F. Gigiano Co., L.P.A. - Attorney at Law | Legal Resources

 

AN EXPLANATION OF OHIO BANKRUPTCY &

FORECLOSURE LAW WHITE PAPER

By Daniel Gigiano – Attorney at Law                             PRINT VERSION


In this white paper, Attorney Daniel Gigiano reviews Ohio bankruptcy and foreclosure laws, which have changed considerably over the last decade.  Attorney Gigiano has practiced bankruptcy and foreclosure law since 1993 and shares his legal knowledge of these difficult financial situations that have affected so many in Ohio.


 

Ohio Homeowners Get Greater Protection in Bankruptcy

daniel gigiano attorney lawyer wadsworth ohio bankruptcy-foreclosure white paper photo of homeIn Ohio, you can now keep even more of your assets when you file for bankruptcy. Starting April 1, 2013, each person can keep up to $132,900 of equity in their home, which adds up to $265,800 for a married couple filing a joint bankruptcy. This is over five times more than people were allowed to keep previously.  This exemption was increased again in 2016 to $136,925 per person.

However, this law had many opponents who argued it only applied to debt that incurred after March of 2013, which meant the old protection of $21,625 per person would apply.  First, a judge in Toledo stated that we should use the exemption of $132,900.  Later, the judge of the Canton bankruptcy court also ruled that this exemption should apply without any limitations.  Currently, it appears that this law is here to stay.  Even if the opponents had won the day at the time, eventually their argument would have become moot, as very few bankruptcies would consist of debt entirely incurred prior to 2013.

“In Ohio, you can now keep even more of your assets when you file for bankruptcy. Starting April 1, 2013, each person can keep up to $132,900 of equity in their home… This exemption was increased again in 2016 to $136,925 per person.”

 

Ohio Bankruptcy Exemptions

daniel gigiano attorney lawyer wadsworth ohio bankruptcy foreclosure white paper debt image

People considering bankruptcy are usually concerned with whether they can still keep their houses, cars, furniture, clothing and the tools they use to make a living.  The good news is that Ohio has generous exemptions protecting those and other assets.  Exemptions work by creating a value that one gets to keep before a creditor or bankruptcy trustee could take anything.  This is why a bank account garnishment does not include the first $475 in the account; that is the cash on hand exemption that the owner of the account gets to keep.  Anything in the account above that amount and not subject to any other exemption can be garnished and sent to the court for disbursement to the creditor. 

Bankruptcy works the same way, except there is no garnishment. The bankruptcy trustee determines if there are non-exempt assets and asks the bankruptcy filer to turn over those assets.  If the bankruptcy filer refuses, the trustee files a motion with the court for turnover of the assets.  The bankruptcy judge makes a decision as whether the trustee could take the items from the bankruptcy filer.

The most common Ohio bankruptcy exemptions for 2016 are as follows:

  • Homestead $136,925 
  • Vehicle $3,775
  • Cash on Hand $475
  • Household Goods and Clothing $12,625
  • Jewelry $1,600
  • Tools of trade $2,400
  • IRA/Pension/401(k) All of it (100%)
  • Burial Plot All of it (100%)
  • Medically necessary health aids All of it (100%)
  • Wildcard/any other property $1,250

Bankruptcy is Constitutional

daniel gigiano attorney lawyer wadsworth ohio bankruptcy foreclosure white paper supreme court photoBankruptcy is specifically mentioned in the United States Constitution.  The United States Constitution states:  “[The Congress shall have Power] to establish . . . uniform laws on the subject of Bankruptcies throughout the United States.”  This means bankruptcy is constitutional.

The Framers wanted to ensure that there would be a uniform system of bankruptcy so that one state would not put someone in debtor’s prison for a debt that was discharged in another state.  James Madison, in Federalist Paper No. 42, wrote about how important uniform bankruptcy laws would be for the regulation of commerce in the United States.  In this article, the power to pass and regulate bankruptcy was mentioned in the same paragraph as the power to issue currency and regulate the use of foreign currency. 

The United States Congress passed the first bankruptcy law in 1800.  However, that law only lasted until 1803.  The next bankruptcy law was not passed until 1841, which also had a short life, lasting only until 1843.  After the civil war, Congress passed a bankruptcy act with a little more longevity, lasting from 1867 to 1878.  Congress finally passed a permanent bankruptcy law in 1898, which remained in place for eighty years.  In 1978, the current structure of bankruptcy laws were enacted.  In 1984, 1986, 1994, and 2005, the bankruptcy act was revised, but the basic structure remained intact.  The 2005 act added the means test and limits on restructuring vehicle loans.  

“The United States Congress passed the first bankruptcy law in 1800.  However, that law only lasted until 1803… Congress finally passed a permanent bankruptcy law in 1898.” 

Debt Collectors in Ohio

daniel gigiano attorney lawyer wadsworth ohio bankruptcy foreclosure white paper debt debt payment photoThe Fair Debt Collection Practices Act (FDCPA) prevents debt collectors from harassing you and calling you outside normal business hours.  While the law gives you some rights, it does not give you the right to avoid your debt.  The FDCPA covers only personal and household debts but not business debts.  Typical personal debts are vehicle loans and credit card debts.

Debt collectors, otherwise known as bill collectors or collection agencies, cannot harass or abuse you, nor can they engage in deceptive or unfair practices in their attempt to collect the debt.  If a bill collector calls you before 8 a.m. or after 9 p.m., you can write a letter telling the bill collector to stop.  It is a good idea to send the letter by certified mail and to keep a copy of the letter.  Once the debt collector receives your letter, the debt collector must stop calling you outside the hours of 8 a.m. and 9 p.m. but can continue to call you between those hours. 

A debt collector can call you at work.  If your employer does not allow such calls, you can tell the debt collector you are not allowed to receive debt collection calls at work.  While you can do so by phone, it is a good idea to follow up by certified letter.  Upon receiving this instruction, the debt collector must stop calling you at work.

Can a debt collector lie?  No.  They cannot pretend to be someone else.  They cannot threaten to put you in jail.  Such tactics are violations of the FDCPA.  Fighting against a violation of the FDCPA starts with your actions.  You can contact the Federal Trade Commission or the Ohio Attorney General’s Office.  You may also hire an attorney to handle the debt collector harassment case.  If you win, you have the right to make the debt collector pay your attorney fees.

Here is some useful contact information for organizations that can help you when you are victim of a violation of the FDCPA:

Can I Go To Jail For Defaulting On A Payday Loan in Ohio?

daniel gigiano attorney lawyer wadsworth ohio bankruptcy foreclosure white paper jail photoSome payday lenders threaten to call the police if the check bounces, prompting one to ask, “Can I go to jail for defaulting on a payday loan?”

A payday loan is usually a small loan with a postdated check as collateral for the loan.  The due date is usually the date of the person’s next paycheck.  Payday loans carry a high interest rate, often more than 300%.  If one borrows $900 on March 1 and has to pay $990 back on March 15, it may not seem like much.  However, ten percent over two weeks is equivalent to 260% over a year.  If someone repeatedly took out this same loan for a full year, that person would pay 260% interest on $900, which amounts to paying the $900 back, plus $2,340 in interest. 

What happens when the lender tries to cash the postdated check?  Because the check was postdated, the lender would not expect you to have funds to cover the check on the date you gave them the check.  Having insufficient funds on the due date does not amount to a criminal offense unless you gave the lender a check knowing you would have no funds to cover it on the due date.  Because you would be receiving your paycheck at that time, you would certainly expect to have sufficient funds to cover the check on the due date.  Accordingly, any threat by the lender to call the police to have you arrested for passing a bad check is likely to be an empty threat.

Can bankruptcy discharge debt from a payday loan?  Of course it can.  Bankruptcy cannot eliminate one’s criminal liability if the funds were stolen or procured by fraud.  In such instances, one may not even receive a discharge for such debts.  However, payday loans, as discussed above, rarely involve any potential criminal liability, which means that the loan can usually be easily discharged in bankruptcy.  Once a driver is stopped at a sobriety checkpoint, the officer determines if the driver is suspected of operating a motor vehicle under the influence of alcohol or drugs.  If there is no suspicion of OVI or other legal wrongdoing, the driver is permitted to leave.  If there is suspicion of DUI, the officer detains the driver and administers field sobriety tests and a breath test.  If the testing establishes probable cause to believe the driver is impaired, the driver may be arrested.

What is the Ohio Foreclosure Process?

daniel gigiano attorney lawyer wadsworth ohio bankruptcy foreclosure white paper home for sale photoSome payday lenders threaten to call the police if the check bounces, prompting one to ask, “Can I go to jail for defaulting on a payday loan?”

What is the Ohio foreclosure process?  Before a foreclosure case is filed, the mortgage company sends a foreclosure referral package to their attorney.  A title examination is done to identify all individuals and entities that have an interest in the real estate, which can even include spouse’s dower rights.  Once that is done, a complaint is filed, with instructions to serve the individuals and entities with an interest in the real estate.

Service usually occurs by certified mail or a sheriff’s deputy.  Once the homeowner receives the complaint, he or she has twenty-eight days to formally respond to the complaint.  Once the complaint is received, it is important to consult with an attorney to determine if there are any legal defenses that need to raised, as well as any motions that need to be filed prior to answering the complaint.  Some claims must be raised before filing a formal answer. 

A foreclosure can take four to six months to the sale and confirmation.  Failure to defend the foreclosure complaint results in the lender’s attorney filing a motion to default judgment, speeding up the process.  Defending the foreclosure usually result in the court referring the case to a number of status or mediation hearings, where forbearance and modification agreement options are considered.  Such programs include the “Home Affordable Modification Program” (HAMP). 

A foreclosure judgment gives the lender the ability to sell the real estate and to collect on the money judgment against the homeowner.  Once a sale is approved, the sheriff appraises the real estate, schedules a sale, and advertises the sale.  The sheriff’s sale is a public auction where any adult can submit a bid.  The property must sell for at least two-thirds of the appraised value.  The sheriff reports the results of the sale to the court.  The lender then requests the court to confirm the sale, distribute the proceeds and order a sheriff’s deed.  If the homeowner has not yet moved out, the buyer can start the eviction process.  Most of the time, the lender buys the real estate.  Any mortgage balance not covered by the sale is known as a deficiency balance.

Do You Get What You Pay For When You Hire A Cheap Bankruptcy Attorney?

daniel gigiano attorney lawyer wadsworth ohio bankruptcy foreclosure white paper cash photo

Do you get what you pay for when you hire a cheap bankruptcy attorney?  Typically, yes. Daniel Gigiano Co., L.P.A. has a competitive fee, but we are not the lowest fee.  We do not want to be the lowest fee because of the loss of professionalism and service that would likely occur if we were to charge such a low fee. 

Daniel Gigiano Co., L.P.A. receives many phone calls asking for the cost of a chapter seven bankruptcy. Some of these prospective clients are looking for a cheap bankruptcy attorney.  Some are just trying to get an idea of the range of bankruptcy attorney fees.  We happily give them our fee and tell them what we do for that fee.  However, it is really difficult to show them all that we do for that fee. 

The list below provides an overview of the professional bankruptcy services provided by Attorney Daniel Gigiano: 

1. Initial consult with client in-person

2. Search local court records and auditor’s records (fiscal office records in Summit county)

3. Order client credit report

A credit report is ordered, saving the client substantial amounts of work in searching for long-lost creditors.  A records search is ordered, thoroughly checking the electronic records of vehicle and real estate ownership.  Some trustees conduct this search.  Shouldn’t you have access to the same information?

4. Order credit counseling class and financial management classes for client

Many attorneys will send their clients to find their own class.  After years of being harassed by phone calls and trying to sort out truth from lies in these calls, do you really want to do more of the same?  Once you file your bankruptcy petition, numerous financial management providers will send you material asking you to take their course, leaving you to guess which ones are legitimate.  Do you really want to do this work?  Ordering the courses streamlines this process and saves you this hassle.     

5. Review completed questionnaire and documents with client in person

The in-person review eliminates phone tag and delays. Because the clients and the attorney are reviewing the documents together, the clients do not have to guess what the attorney is talking about and can ask questions in real-time.  They are looking at the documents and are actively engaged in the process.  This is not simply a “sign here” meeting.

This process leads to a better bankruptcy petition, with thorough and accurate information.  An experienced and thorough bankruptcy attorney, Daniel Gigiano actually reviews the petition with the clients, going through the details.  This sometimes results in corrections, but better in the office than to be caught flat-footed sitting on your heels at the hearing.  This process leads to a smoother bankruptcy hearing.

6. Review information with client in person before hearing

At the hearing in Akron or Canton, Attorney Daniel Gigiano reviews the information one last time with the client right before the hearing.  After the hearing, clients often ask if “that was it?”  The clients are often amazed at how easy the questions were.  The questions are not easy, but they can be if you have been thoroughly prepped for the hearing.

Some may say such thorough bankruptcy services are unnecessary, or they would rather have their bankruptcy attorney miss certain unwanted pieces of information.  Attorney Daniel Gigiano has attended many hearings in Canton, where the hearings are public.

While waiting for his client’s hearing, Attorney Daniel Gigiano takes a few minutes to listen to other hearings.  A good attorney never stops learning.  Those hearings are usually just conducted by the local chapter 7 trustee.  If the petition is red-flagged, a representative from the U.S. trustee comes to ask questions.

In one hearing, this bankruptcy attorney heard the U.S. trustee, who made a special trip to question this debtor, ask about “house expenses” listed on her bankruptcy petition.  Attorney Daniel Gigiano was surprised to hear this, too, as there is no line item for “house expenses,” nor is that a clear depiction of expenses.  Then, the U.S. trustee did take the trouble to send an additional representative to thoroughly vet this person with questions.  The “house expenses” item turned out to be a variety of expenses, many of which were already listed elsewhere in the petition.

Now, this attorney asked himself, didn’t the bankruptcy attorney read this bankruptcy petition before filing it?  This bankruptcy attorney was certain that this debtor did not leave that hearing asking if “that was it?”  This particular debtor may have also faced a motion to dismiss her bankruptcy due to the misleading and untruthful nature of her petition.

Perhaps that person had one of those cheap bankruptcy attorneys and was run through a “mill” where they had minimal interaction with an actual bankruptcy lawyer.  Such a process can miss things, but the U.S. trustee reads those bankruptcy petitions and looks for missing things.

 

Bankruptcy and Foreclosure Cases Successfully Represented by Daniel Gigiano

  • In re J.T. Discharge of student loans, which are usually not dischargeable.
  • In re R.S. & A.S. Seven figure bankruptcy.  Discharge of large business debt, while allowing clients to keep their home and personal assets.
  • In re F.C. & J.C. Stripped and discharged six figure second mortgage that was used to finance a failed business.
  • US Bank v. K.T. & H.T.  Successful modification of mortgage and dismissal of foreclosure case.

 

Attorney Gigiano also has attended numerous bankruptcy seminars, including the annual seminar in Hartville, Ohio.  Serious bankruptcy attorneys attend this seminar regularly, as it provides updates on bankruptcy law changes as well as direct information from bankruptcy judges, trustees and creditor’s attorneys - the people who decide the average person’s fate. These people present and answer questions at this seminar. Sometimes, you cannot get this information from a book or online resources.  You have to be there to hear it in person, especially when one of the judges offers their take on a topic.

The U.S. Trustee’s office also regularly presents at the Hartville seminar.  Sometimes, they lecture on the federal criminal sanctions for lying on your bankruptcy petition.  Real people go to real federal penitentiaries for real misstatements on real bankruptcy petitions.  Unfortunately, many of these misstatements provide little benefit in the bankruptcy petition. How much better it is to have the truth presented in the most favorable light on solid legal grounds, leading to a “that was it?” hearing.  Are cheap and easy bankruptcy petitions worth the possibility of dismissal of the bankruptcy petition or possible federal criminal charges?  Is a cheap bankruptcy worth a denial of discharge?

For More Information on Ohio Bankruptcy and Foreclosure Law

Contact Daniel Gigiano at 330-336-3330 or gigianolaw.com/bankruptcy if you need additional information about Ohio bankruptcy and foreclosure laws, are considering filing for bankruptcy or are in a potential foreclosure situation. The initial 30 minute consultation is always free.  


About The Author – Daniel Gigiano, Esq.

Daniel Gigiano, Esq. graduated from Loyola University Chicago School of Law and is the owner of Daniel F. Gigiano Co., L.P.A. located in downtown Wadsworth, Medina County, Ohio.

Attorney Gigiano regularly represents individuals in bankruptcy and foreclosure cases in the courts in Medina County, Wayne County and Summit County.  Daniel Gigiano, attorney at law, has fought hard to win many cases, winning dismissals in several courts, including Medina County and Wayne County courts.

Attorney Daniel Gigiano has practiced law since 1993. In addition to bankruptcy and foreclosure defense, he also practices law in the following areas: Business Law, Civil Litigation, Collections, Criminal Defense, Divorce & Family Law, Estate Planning, OVI/DUI, Personal Injury, Probate, and Real Estate.

Posted by Kevin Oswald - October 5, 2016 at 10:22 am

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Explanation of Ohio OVI and DUI Law White Paper by Daniel Gigiano



Daniel F. Gigiano Co., L.P.A. - Attorney at Law | Legal Resources

 

AN EXPLANATION OF OHIO DUI AND OVI

LAW WHITE PAPER

 

By Daniel Gigiano – Attorney at Law                             PRINT VERSION


In this white paper, Attorney Daniel Gigiano reviews Ohio OVI/DUI laws and Ohio Supreme Court OVI cases.  DUI cases are some of the most common cases in Ohio Municipal Courts and are also quite prevalent in Ohio Courts of Common Pleas.  Attorney Daniel Gigiano has practiced DUI law since 1993 and shares his legal knowledge of the offense that has touched so many lives in Ohio.


 

What is the Difference between OVI and DUI in Ohio?

Daniel Gigiano Attorney Lawyer Wadsworth Ohio-OVI-DUI White Paper Photo 1What is OVI in Ohio?  The term DUI is used in this white paper because it is what most people commonly call the offense of driving under the influence of alcohol.  Even Ohio lawyers loosely use the term DUI, rather than the official term of OVI.  DWI is typically recognized as an outdated term by both laypeople and professionals. What are DUI, OVI, DWI, and BAC in Ohio?  DUI is driving under the influence.  DWI is driving while impaired.  DUI and DWI are acronyms that are no longer used in Ohio since Ohio passed a law in 1982 that refers to driving under the influence of alcohol or drugs as OMVI or “operating a motor vehicle impaired.”

With OMVI being the official term at one point, that leaves us with the question of what is OVI in Ohio?

When Ohio removed the requirement that the vehicle be motorized, the offense was shortened to OVI, or “operating a vehicle impaired.”

Our next term, BAC, is still alive and well today in the law.  BAC refers to blood alcohol content.  Under Ohio OVI law, it is illegal to operate a vehicle with a BAC of .08 breath alcohol content or greater.  If the driver is under 21 years of age, the legal limit is as low as .02 breath alcohol content.  For many people, that can be reached with as little as one drink within the hour before testing.

 

“When Ohio removed the requirement that the vehicle be motorized, the offense was shortened to OVI, or ‘operating a vehicle impaired.’ ” 

 

 

Ohio OVI Law Changes

Daniel Gigiano Attorney Lawyer Wadsworth Ohio-OVI-DUI White Paper Photo 2Ohio OVI laws (more commonly known as DUI or DWI) have changed over the last several years.  First, a test result of .17 or greater doubles the minimum incarceration period.  For example, a first time OVI conviction normally carries a minimum sentence of three days in a driver intervention program or jail.  A high test result doubles that minimum sentence to six days in jail or to both three days in jail and three days in the driver intervention program.

Before this Ohio OVI law was passed, a high test result could be considered in sentencing, but did not require mandatory minimum jail time.

Ohio OVI law also now includes a new criminal offense for refusing to take the Breathalyzer test.  If a person arrested for OVI in Ohio has been previously convicted of an OVI within twenty years and refuses to take the Breathalyzer test, that person can be charged with a separate offense of refusal.  The minimum incarceration period for a refusal is twice as much as those for the conviction under Ohio OVI laws.

Prior to the Ohio breathalyzer refusal law being passed, refusing to take a breathalyzer was not a crime, but simply resulted in a longer administrative license suspension (ALS).

 

Ohio DUI Blood Testing Requirements

Daniel Gigiano Attorney Lawyer Wadsworth Ohio-OVI-DUI White Paper Photo 3On February 10, 2016, the Ohio Supreme Court issued a decision on Ohio DUI blood testing requirements, deciding whether the police substantially complied with the Department of Health regulations.

The substantial compliance standard was created by the Ohio Supreme Court years ago.  Some argue that the substantial compliance standard provides rational flexibility while others argue that it allows court to ignore serious forensic errors by the police.

This case involved a fatal vehicle accident in which alcohol was suspected as the cause.  A blood sample was taken at 1:50 a.m.  Even though the officer went back to the police station to complete paperwork, he kept the sample in his cruiser until his shift ended at 6 a.m. when he mailed it to the crime lab.  The lab test revealed Baker’s blood alcohol level to be .095, slightly over the legal limit of .08.  Ohio OVI law stated “while not in transit or under examination, all blood and urine samples shall be refrigerated.”  Despite the fact that the sample was not in transit or under examination, the Ohio Supreme Court held that failure to refrigerate the sample for 4 hours and 10 minutes still substantially complied with Ohio DUI blood testing requirements.  Therefore, the evidence was not automatically suppressed for failure to follow the rule.

Ohio Supreme Court Justice O’Neill, in his dissenting opinion, criticized the opinion of the court when he stated it was “outrageous that the General Assembly assigned to experts the task of setting rules to ensure that accurate test results are admitted in drunk-driving cases only to have the rules ignored.”  He further exclaimed, “One man lies dead and another man faces a lengthy prison term if convicted of drunk driving.  This is no time to be treating the rules regarding admissibility of evidence lightly.”

“Ohio OVI law stated ‘while not in transit or under examination, all blood and urine samples shall be refrigerated.’ ” 

As a practicing attorney at Daniel F. Gigiano Co., L.P.A. and having practiced DUI law since 1993, I agree with Justice O’Neill.  The rules are there for a reason.  Essentially, somebody determines the procedures necessary to properly preserve evidence.  Having such rules in place avoids having an expert testify in every case to explain how to preserve evidence.  I have to wonder if the blood sample in this serious fatal DUI case was truly reliable.

However, the Ohio Supreme Court did not see it that way and that high court is the last word on legal issues unique to Ohio.

Of course, the United States Supreme Court may occasionally touch on federal limitations to Ohio issues.  

Ohio OVI Law Repeat Offender Specifications Constitutional

Daniel Gigiano Attorney Lawyer Wadsworth Ohio-OVI-DUI White Paper Photo 4In 2016, the Ohio Supreme Court found the Ohio OVI law repeat offender specifications constitutional.  The accused challenged the Ohio DUI sentencing laws as unconstitutional alleging that such laws violated his right to equal protection of the law.  The Ohio Supreme Court disagreed. Ohio DUI law sets up a system of increased penalties for repeat DUI offenders.  First and second OVI offenses within six years is a first degree misdemeanor.  A third OVI offense within six years is still a first degree misdemeanor, but the accused can be sentenced to one year in jail, rather than just six months.  If one has three or four prior misdemeanor OVI convictions in the past six years, the OVI is a fourth-degree felony.  If one has five or more OVI convictions in the past 20 years, the OVI is a fourth degree felony.

One with zero to one prior convictions faces a maximum of six months in jail.  One with two prior OVI convictions faces a year in jail.  Fourth degree OVI convictions have a base term of 30 months plus 60 or 120 days.  Third degree OVI convictions have a maximum term of 5 years plus 60 or 120 days.  The repeat-OVI specification applies to third degree or fourth degree offenders with five or more convictions in 20 years.  This specification adds a mandatory prison term of one, two, three, four or five years in addition to the base term of imprisonment for the underlying offense.

OHIO DUI LAW PENALTIES FOR REPEAT OFFENDERS

 
OffensesMisDemeanor/FelonyMax Jail/Prison Term
1st in 6 years1st degree misdemeanor6 months
2nd in 6 years1st degree misdemeanor6 months
3rd in 6 years1st degree misdemeanor12 months
4th in 6 years or 6th in 20 years4th degree felony34 months
2nd Felony Lifetime3rd degree felony5 years

 

 Are Sobriety Checkpoints Legal under Ohio OVI Law? 

Daniel Gigiano Attorney Lawyer Wadsworth Ohio-OVI-DUI White Paper Photo 5Are sobriety checkpoints legal under Ohio OVI law?  Here, we examine whether police can use sobriety checkpoints to stop drivers to see if they may be driving while impaired. The United States Supreme Court held that sobriety checkpoints are valid.  In their decision, the Court found that the intrusion and inconvenience to individuals who are stopped is outweighed by the government’s interest in restricting drunk driving. Ohio courts determined that there are four factors to determining the legality of a sobriety checkpoint:

  • A checkpoint location must be selected for its safety and visibility to oncoming motorists
  • Adequate advance warning signs illuminated at night, must timely inform approaching motorists of the nature of the impending intrusion
  • Uniformed officers and official vehicles must be in sufficient quantity and visibility to show the police power of the community
  • Policy-making administrative officers must make a pre-determination of the roadblock location, time, and procedures to be employed, according to carefully formulated standards and neutral criteria.

“The United States Supreme Court held that sobriety checkpoint are valid.”

Once a driver is stopped at a sobriety checkpoint, the officer determines if the driver is suspected of operating a motor vehicle under the influence of alcohol or drugs.  If there is no suspicion of OVI or other legal wrongdoing, the driver is permitted to leave.  If there is suspicion of DUI, the officer detains the driver and administers field sobriety tests and a breath test.  If the testing establishes probable cause to believe the driver is impaired, the driver may be arrested.  

For More Information on Ohio OVI Law

Contact Daniel Gigiano at 330-336-3330 if you need additional information about Ohio OVI law or have been accused of OVI. The initial 30 minute consultation is always free.  


About The Author – Daniel Gigiano, Esq. Daniel Gigiano, Esq. graduated from Loyola University Chicago School of Law and is the owner of Daniel F. Gigiano Co., L.P.A. located in downtown Wadsworth, Medina County, Ohio. Attorney Gigiano regularly represents individuals accused of DUI and/or OVI in the courts in Medina County, Wayne County and Summit County.  Daniel Gigiano, attorney at law, has fought hard to win many DUI and/or OVI cases, winning dismissals in several courts, including Medina County and Wayne County courts. Attorney Daniel Gigiano has practiced law since 1993. In addition to DUI/OVI, he also practices law in the following areas: Bankruptcy, Business Law, Civil Litigation, Collections, Criminal Defense, Divorce & Family Law, Estate Planning, Foreclosure Defense, Personal Injury, Probate, and Real Estate.

Posted by Kevin Oswald - August 9, 2016 at 12:36 pm

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Repeat OVI Offender Specifications Constitutional

Ohio Supreme Court Declares Repeat OVI Offender Specifications Constitutional

  In 2016, the Ohio Supreme Court found the repeat OVI offender specifications constitutional.  The accused challenged the Ohio DUI sentencing laws as unconstitutional because they violated equal protection of the law.  The Ohio Supreme Court did not agree with that argument.

 

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Posted by Daniel Gigiano - August 7, 2016 at 11:42 am

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DUI Blood Testing Requirements

On February 10, 2016, the Ohio Supreme Court issued a decision on DUI blood testing requirements. In this latest case, the Ohio Supreme Court had to decide if the police substantially complied with the Department of Health regulations.  The substantial compliance standard was created by the Ohio Supreme Court years ago.  Some argue that the substantial compliance standard provides rational flexibility while others argue that it allows court to ignore serious forensic errors by the police.

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Posted by Daniel Gigiano - April 15, 2016 at 9:12 pm

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What Do You Do When Pulled Over By The Police?

What do you do when pulled over by the police?  This really depends on the situation, but there are some tips that work for traffic stops, especially those where the officer suspects a DUI or OVI.   Be aware that the officer and perhaps his video camera is watching your every move.  Signal and pull over right away, but do so smoothly, safely, and completely.  Put the car into park or, if you have a stick-shift, move the gear to neutral and set the parking brake.  Have your license, registration and insurance in hand as quickly as possible.  Keep your seat belt on.  Turn off the radio and roll your window down.  When the officer approaches your vehicle and asks for your driver’s license, registration and insurance, hand them over.  If you still have not located these items, ask the officer for permission before going to retrieve them.  This will alert the officer that you are merely trying to comply with his or her request and that you are not retrieving a weapon.  The officer will be noting whether you are having difficulty finding these items, especially if it looks clumsy.  The officer may ask questions.  You should either politely decline or keep your answers short and true, without admitting anything.   (more…)

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Posted by Daniel Gigiano - June 27, 2015 at 8:13 pm

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Tuscarawas Township DUI Attorney

One who drives through Tuscarawas Township and receives an OVI citation will be in need of the services of a Tuscarawas Township DUI attorney, who has the familiarity and experience to navigate one’s way through Massillon Municipal Court, Stark County Court of Common Pleas, and Stark County Juvenile Court, where misdemeanor, felony and juvenile DUIs are heard.   Misdemeanor DUI citations issued in Tuscarawas Township are sent to Massillon Municipal Court, Two James Duncan Plaza, Massillon, Ohio 44648.  Felony DUI indictments for an incident alleged to have occurred in Tuscarawas Township are filed in the Stark County Court of Common Pleas, 101 W. Tuscarawas Street, Canton, Ohio 44702.  Delinquency complaints alleging OVI in Tuscarawas Township are filed in the Stark County Juvenile Court, 110 Central Plaza South, Suite 601, Canton, Ohio 44702.   (more…)

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Posted by Daniel Gigiano - June 20, 2015 at 4:22 pm

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Jackson Township DUI Attorney

Daniel F. Gigiano, Wadsworth OhioWhen someone receives a DUI citation in Jackson Township, that person will need the services of a Jackson Township DUI attorney.  A Jackson Township OVI lawyer does not necessarily have an office in Jackson Township but has the familiarity and experience to handle such cases in Massillon Municipal Court, Stark County Court of Common Pleas, and Stark County Juvenile Court, where misdemeanor, felony and juvenile DUIs are handled. (more…)

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Posted by Daniel Gigiano - June 14, 2015 at 12:49 pm

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Wooster DUI Attorney

A Wooster DUI attorney handles the following types of cases:  DUI, OVI, driving under suspension, and other traffic offenses.  OVI is the acronym for “operating vehicle under the influence of alcohol or drugs,” and such cases typically consist of two potential offenses: (1) the OVI charge, which alleges that the person operated a vehicle under the influence of alcohol, a drug of abuse, or a combination of them; and (2) the BAC charge, which usually alleges that the person operated a motor vehicle with a blood alcohol concentration of .08 or more, which is determined by a breath sample, or an equivalent amount by blood serum or plasma or urine, as well as levels of various drugs.  Depending on the number of prior offenses, there are minimum periods of suspension and incarceration set forth under Ohio law. (more…)

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Posted by Daniel Gigiano - March 8, 2015 at 11:16 am

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Creston DUI Attorney

What is a Creston DUI attorney?  While some may also commonly refer to such an attorney as a Creston driving under the influence attorney, the better term is a Creston OVI attorney, or Creston operating a vehicle under the influence attorney.  OVI is defined in Ohio Revised Code 4511.19, bearing the title “operating vehicle under the influence of alcohol or drugs.”  Such cases can consist of two charges.  The first involves one’s driving being affected by the consumption of alcohol.  The second involves having a prohibited amount of alcohol in one’s body.  A Creston DUI lawyer will also handle “physical control” cases.  Having physical control of a vehicle while under the influence is defined in Ohio Revised Code 4511.194.  Simply stated, physical control of a motor vehicle occurs when one is in the driver’s seat of a vehicle with possession of the keys, and the person is under the influence or drugs, alcohol or a combination of them, or has a BAC as defined in the OVI statute (R.C. 4511.19).  Finally, a Creston DUI lawyer will be prepared to handle operating a vehicle after underage consumption (OVUAC), as defined by Ohio Revised Code 4511.19.  This law makes it illegal for persons under 21 years of age to drive a vehicle with as little as a concentration of .02 percent by weight of alcohol by whole blood or breath, or with an equivalent amount by blood serum or plasma or urine. (more…)

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Posted by Daniel Gigiano - January 24, 2015 at 2:57 pm

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Brunswick DUI Attorney

What is a Brunswick DUI attorney?  A DUI, officially known as an OVI, is defined in Ohio Revised Code 4511.19, bearing the title “operating vehicle under the influence of alcohol or drugs.”  OVI cases are made up of two separate charges: (1) the OVI charge, which alleges that the person operated a vehicle under the influence of alcohol, a drug of abuse, or a combination of them; and (2) the BAC charge, which usually alleges that the person operated a motor vehicle with a blood alcohol concentration of .08 or more, which is determined by a breath sample, or an equivalent amount by blood serum or plasma or urine, as well as levels of various drugs.
When one is in the driver’s seat of a vehicle with possession of the keys, and the person is under the influence of drugs, alcohol or a combination of them, or has a BAC, one may be charged with physical control of a motor vehicle under Ohio Revised Code 4511.194. (more…)

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Posted by Daniel Gigiano - January 24, 2015 at 8:04 am

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Doylestown Ohio DUI Attorney

A Doylestown Ohio DUI attorney identifies and pursues defenses for someone accused of OVI in Doylestown, Ohio.  In Ohio, a DUI offense is not called DUI or DWI, but is called an OVI.  OVI is defined in Ohio Revised Code 4511.19 (R.C. 4511.19) as “operating vehicle under the influence of alcohol or drugs,” and typically consists of two separate charges: (1) the OVI charge, which alleges that the person operated a vehicle under the influence of alcohol, a drug of abuse, or a combination of them; and (2) the BAC charge, which usually alleges that the person operated a motor vehicle with a blood alcohol concentration of .08 or more, which is determined by a breath sample, or an equivalent amount by blood serum or plasma or urine, as well as levels of various drugs.  If the accused was not actually driving but was in the driver’s seat with possession of the keys, the more appropriate charge may be the lesser crime of physical control, as defined in R.C. 4511.194.  If the accused was underage and was driving with a concentration of at least .02 percent, but less than .08 percent BAC, the more appropriate charge may be operating a vehicle after underage consumption (OVUAC), sometimes referred to as a “baby DUI.” (more…)

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Posted by Daniel Gigiano - January 17, 2015 at 1:13 pm

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Rittman DUI Attorney

The crime of OVI in Ohio is often referred to as DUI, DWI, drunk driving, driving under the influence, or driving while intoxicated.   Ohio defines the offense as operating a vehicle under the influence in Ohio Revised Code 4511.19 (R.C. 4511.19).  A Rittman DUI Attorney can identify and pursue defenses for one charged with one of the following offenses in Rittman, Ohio: (1) the OVI charge, which alleges that the person operated a vehicle under the influence of alcohol, a drug of abuse, or a combination of them; and (2) the BAC charge, which usually alleges that the person operated a motor vehicle with a blood alcohol concentration of .08 or more, which is determined by a breath sample, or an equivalent amount by blood serum or plasma or urine, as well as levels of various drugs. (more…)

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Posted by Daniel Gigiano - January 3, 2015 at 10:10 am

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Seville DUI Attorney

A DUI alleged to have been committed in Seville, Ohio, will be heard in:Misdemeanor DUIs in Wadsworth Municipal Court,120 Maple Street, Wadsworth, Ohio 44281;Felony DUIs in Medina County Court of Common Pleas,93 Public Square, Medina, Ohio 44256; orJuvenile DUIs in Medina County Juvenile Court,93 Public Square, Medina, Ohio 44256.Such offenses will require the services of a Seville DUI attorney, who can spot, investigate and pursue potential defenses.
OVI is the official name for a DUI and typically consists of wither the BAC charge and/or the OVI charge.  While OVI cases involve someone driving a motor vehicle, physical control cases involve someone who is merely in the driver’s seat of a vehicle with possession of the keys.  Baby DUIs, or operating a vehicle after underage consumption (OVUAC) makes it illegal for persons under 21 years of age to drive a vehicle with a concentration of .02 percent, but less than .08 percent by weight of alcohol by whole blood or breath, or with an equivalent amount by blood serum or plasma or urine. (more…)

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Posted by Daniel Gigiano - December 27, 2014 at 3:22 pm

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Summit County DUI Attorney

One accused of a DUI in Summit County needs a Summit County DUI attorney who has the experience to provide defense for various types of DUI and related issues.  DUI is officially known as Operating a Motor Vehicle Under the Influence (OVI) as defined in Ohio Revised Code 4511.19.   Summit County has three municipal courts, a juvenile court, common pleas court and several mayor’s courts, any of which will handle all or some portion of a DUI alleged to have been committed in Summit County.  All must follow Ohio law, including holding the State of Ohio to their burden of proof beyond a reasonable doubt. (more…)

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Posted by Daniel Gigiano - December 27, 2014 at 11:08 am

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Wadsworth DUI Attorney

A Wadsworth DUI attorney handles OVI cases, as defined in R.C. 4511.19, physical control cases, as defined in R.C. 4511.194, and baby DUI cases, as defined in R.C. 4511.19. OVI cases typically consist of two separate charges:
  1. The OVI charge, which alleges that the person operated a vehicle under the influence of alcohol, a drug of abuse, or a combination of them; and
  2. The BAC charge, which usually alleges that the person operated a motor vehicle with a blood alcohol concentration of .08 or more, which is determined by a breath sample, or an equivalent amount by blood serum or plasma or urine, as well as levels of various drugs.
(more…)

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Posted by Daniel Gigiano - November 23, 2014 at 8:45 pm

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What Is A Clinton DUI Attorney?

What is a Clinton DUI attorney?

A Clinton DUI attorney represents individuals charged with OVI, having physical control of vehicle while under the influence, and baby DUI cases.  A motion to suppress can be used to invalidate the traffic stop, field sobriety tests, arrest, breathalyzer test, blood test or urine test.  The Clinton OVI lawyer can negotiate the dismissal of charges that require additional mandatory jail time. What court does a Clinton DUI go to? Misdemeanor DUIs in Clinton are heard in Barberton Municipal Court.  Felony DUIs in Clinton are heard in the Court of Common Pleas for Summit County.  Juveniles accused of DUI in Clinton will have their cases heard in the Summit County Juvenile Court. (more…)

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Posted by Daniel Gigiano - November 15, 2014 at 8:19 pm

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