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Michael Probst
Criminal & DUI Defense Lawyer
Criminal & DUI Defense Lawyer

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A Final Comment on #JTBarrett   #OVI   #Conviction  and the Constitutionality of OVI #Checkpoints  

- Michael S. Probst, Esq.

First and foremost, Mr. Barrett is an adult who certainly has the capability to know right from wrong and to understand and appreciate the consequences of his actions. He chose to consume #alcohol   that evening and then to #operateamotorvehicle . Ultimately, he is solely responsible for his own actions.

With that being said, there has been much speculation in the legal community among #ColumbusOhio   #defenseattorneys  that Mr. Barrett would have been successful had he fought the case and not plead guilty in arraignment court. Of course that sentiment is not shared by most, if not all local prosecuting attorneys, probably based largely on the fact that Mr. Barrett chose to submit to a #breathalyzertest  and his BAC test yielded a result that was over the legal limit in Ohio.

As a local defense attorney, what I can say with near certainty is that the Columbus City Attorney's Office had a policy in this case from on high that no deals were to be offered to Mr. Barrett due to his status as a high profile figure and the intense media scrutiny in this case. This is a bit unfortunate for Mr. Barrett, because there are many people who have gone through the system in #FranklinCountyMunicipalCourt  with a breath test result between .08 and .10 who have received plea offers to reduced charges, or who have been successful getting evidence thrown out and ultimately received reduced plea offers as a result of the fact that they chose to fight the case instead of initially pleading out. We will never know Mr. Barrett's chance of success, because he chose to enter a guilty plea at arraignment.

Had Mr. Barrett chosen to fight his case, he would have had a lengthy upward battle and would have had to begin by challenging many facets of the case, including:

1. Reasonable Suspicion for the Traffic Stop

I have not had the opportunity to view the police report in detail in order to determine whether police possessed reasonable suspicion to conduct the traffic stop of Mr. Barrett. Mr. Barrett was charged with Unsafe Backing under the Columbus City Code in violation of R.C. 2131.13(A), which appears to be the basis of the traffic stop. The media is reporting that Mr. Barrett attempted to back up on a public street in order to avoid an OVI checkpoint. According to reports, in doing so, Mr. Barrett created a situation where he almost caused an accident on a public street.

Whether he did in fact do this and whether it created reasonable suspicion for the traffic stop would have been a decision left to the judge in this case. Getting any case thrown out for lack of reasonable suspicion to conduct a traffic stop is very difficult due to the fact that reasonable suspicion is a very low threshold for the State of Ohio to meet in establishing that there were grounds for police to have conducted the traffic stop.

In all likelihood, Mr. Barrett would not have been successful in his argument regarding lack of reasonable suspicion for the traffic stop.

2. #Constitutionality  of the OVI Checkpoint

The leading case regarding the constitutionality of OVI checkpoints was decided by the United States Supreme Court in Michigan Department of State Police v. Sitz, 496 U.S. 444, and was followed by the Supreme Court of Ohio in State v Orr, 2001-Ohio-50. In Sitz, the Supreme Court set forth a three-pronged balancing test for determining the constitutionality of sobriety checkpoints, which requires a case by case evaluation of “[1] the checkpoint’s intrusion on privacy, [2] the state’s interest in maintaining the checkpoint, and [3] the extent to which the checkpoint advances the state interest.”
Among others, in order to establish that an OVI checkpoint is being operated in a constitutional fashion, police are required to demonstrate an increase in traffic, traffic crashes, OVI arrests and/or crime in a particular area where an OVI checkpoint is being operated in order to justify the location. Additionally, the OVI checkpoint must be well marked, advising oncoming motorists of the checkpoint and allowing them the opportunity to avoid the checkpoint.

I recently challenged the constitutionality of an OVI checkpoint in Lima, Ohio and conducted a motion hearing in order to have the checkpoint ruled to be unconstitutional. The crux of the motion centered on the constitutionality of the checkpoint and whether it infringed on constitutional rights by not allowing drivers a chance to avoid the checkpoint. At the motion hearing, the police officer testified on direct that a sign warning of an impending OVI checkpoint was placed 300 feet from the only intersection at which my client could have avoided the OVI. The video evidence clearly demonstrated it was placed much closer than 300 feet. On cross I asked the officer whether he believed the sign was placed a football field length away from the intersection and he squinted at the still shot of the video and said "75 feet". My motion then included a conversion of miles per hour to feet per second in arguing that the warning did not allow motorists the opportunity a point of egress to avoid the checkpoint. While the motion was pending before the Judge, I got a call from the prosecutor with an offer to reduce the charge to a minor misdemeanor Reckless Operation with no license suspension He realized that as a result of the motion hearing, the State's case was crumbling; however, there were no guarantees how the Judge would rule. Rather than rick an errant decision by the Court, my client elected to accept the plea deal.

3. #ProbableCause  for the Arrest

Mr. Barrett would also likely have filed a motion to challenge whether probable cause existed for his arrest. In OVI traffic stops, police officers are trained under a manual promulgated by the National Highway Traffic Safety Administration (NHTSA) to administer standardized field sobriety tests upon individuals suspected of being impaired. These standardized tests include, but are not limited to: A. Horizontal Gaze Nystagmus Test; B. Walk and Turn Test; and C. One Leg Stand Test.

These tests are designed to assist officers in determining whether an individual's BAC is at or above a certain level. While there certainly are police officers who are properly trained to administer these tests, many police officers have received little or no training to administer these tests. The NHTSA Manual provides that of the tests are not administered in substantial compliance with the instructions set forth therein, then the validity of the test results is compromised.

I have received specific training regarding the administration of field sobriety testing here in Ohio, much like training that police officers have received. It is important in every OVI case to obtain as much discovery as possible, including cruiser video evidence, booking video evidence and BAC room video evidence in order to determine whether the arresting officer substantially complied with administration of the field sobriety tests.

4. Challenges to Breathalyzer Tests

Mr. Barrett would also have challenged the results of the breathalyzer test. Without getting into gross detail - the challenges would be many - Mr. Barrett would have challenged whether the breath sample was collected in accordance with rules set forth in the Ohio Administrative Code and whether the breath logs were maintained in proper order and didn't demonstrate error with the machine.

He likely would have needed to retain an expert witness for purposed of a motion hearing to challenge the results of the breathalyzer test, as well as for any possible trial before a jury.

5. Public Relations/Image

I believe that the ultimate reason for Mr. Barrett's decision to plead guilty to the OVI charge stems from his desire to maintain a good public image.

There were going to be no deals made whatsoever. That was clear from the top on down. That means that this case would have dragged on for at least another six months while he hired an expert, had a motion hearing, and then had a trial. All the while, the media would've made this a huge case and it would've been an enormous distraction to young man and his entire football team that is trying to win another national championship. I'm sure that he would rather not have a DUI on his record, but in the end it probably doesn't really matter. Mr. Barrett is likely going to be playing football in the NFL and a charge like this will probably not affect his life. Yes, he probably could have beaten this charge, but at what cost? He did the best thing for his team which is the most unselfish act.

What NFL teams will most likely look at is Mr. Barrett's character and how he overcame this unfortunate situation. I believe that Mr. Barrett's acceptance of responsibility speaks volumes about his character and he will learn from and recover from this mistake.

6. Checkpoints in General

I have long believed that OVI checkpoints are an inefficient use of resources for deterring drinking and driving and for catching OVI offenders. First, I believe that many OVI checkpoints are used as a guise to really try and catch illegal immigrants or felony offenders as opposed to OVI offenders. If you examine the location of many OVI checkpoints, you will see that they are clearly not located in areas where people will likely be operating a vehicle while impaired, but rather in locations where police believe that illegal immigrants or felony offenders are likely to be living. Additionally, these checkpoints rarely produce OVI arrests.

I believe that a more effective use of resources if for police to use saturation patrols in areas as opposed to OVI checkpoints. Saturation patrols are essentially ramped up patrolling in neighborhoods where drinking and driving is likely occurring.

Recently, the Columbus Dispatch ran an article on the fairness and effectiveness of of OVI checkpoints in Ohio. It is an excellent article and I am attaching it here for review.

Thank you for reading.

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Columbus Ohio OVI DUI Drunk Driving Defense - Importance of Cruiser Video

When I defend OVI cases, I constantly stress the importance of obtaining cruiser video in drunk driving arrests.  It is a crucial part of any OVI defense.  It is especially necessary to compare the actual footage with what the officer wrote in his or her report to check for discrepancies.  Further, I have taken extensive training regarding the administration of field sobriety testing by NHTSA and I am very aware of how these tests are to be administered by officers.  When the tests are not administered in substantial compliance with NHTSA standards, the validity of the tests is compromised.

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Check out this great post by +Richard S. Lawson   I have visited a dispensary first hand in Denver, Colorado to see what it was like and I found the place to be extremely clean and well kept.  The staff was very courteous and knowledgeable and the clientele was upscale.  
The sky is falling in Colorado 6-months after marijuana legalization. 

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#ColumbusOhioDUILawyer   #DUIDefense   #OVIAttorney  

A solid DUI defense starts with an experienced and hard working attorney.  Michael Probst of +Probst Law Office, Inc. has a tremendous amount of experience representing honest and hardworking people who have been charged with #drunkdriving  

You can trust my firm to work hard in getting results.  If you have been charged with a #duioffense  in Ohio, you owe it to yourself to contact me for a free initial consultation. 

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#ColumbusLawyer   convicted of Rape, Kidnapping Gross Sexual Imposition and Sexual Battery

A well known Columbus Ohio attorney named Javier Armengau  was convicted today in the Franklin County Court of Common Pleas on 9 total counts including Rape, Kidnapping, Sexual Battery and Gross Sexual Imposition.  The allegations in the indictment stem from charges that he sexually assaulted several women who may have been either clients or mothers of his clients.  Attorneys for Mr. Armengau called the verdict "devastating" and certainly plan to appeal.  The Judge immediately revoked Mr. Armengau's bond and he was taken into custody.  Sentencing has been set for August 12, 2014.  Local attorneys in the Columbus community are shocked by the verdict.

Did you see this +Brian M. Fishman +Luke Rioux +Attorney Luke S. Rioux +Brian Dennie +Charles Rittgers +Probst Law Office, Inc. 

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Conspiracy to Distribute Heroin in United States District Court for the Southern District of Ohio

I achieved a great result for a client today in federal court. The client is not a United States citizen and was arrested in 2013 for Conspiracy to Distribute Heroin in an amount exceeding 3 kilograms. At the state level this is synonymous with #traffickinginheroin   He was initially indicted in such a manned that that the penalty for the offenses was a mandatory minimum of 10 years in the Bureau of Prisons with a maximum term of life in prison.

The indictment followed an investigation that yielded federal wiretaps of my client's cellular telephone with multiple recorded phone calls.

After working the case for a significant period of time, I was able to negotiate the removal of the mandatory specification in the indictment that carried a minimum amount of 10 years in prison. The client followed my advice and cooperated with authorities. At the #sentencinghearing  my client received a prison sentence of only 24 months. He was given credit for the 11 months that he has already served in the local county jail.

A monumental result for the client!

#heroin   #trafficking   #drugtrafficking   #drugoffense   #sellingdrugs  

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Interesting article by +Brian Zeiger a skilled #philadelphiaduilawyer  in the area of #driverslicenselaw  

 Not Guilty Verdict in DUI Jury Trial in Columbus

I'm proud to report that I obtained a not guilty for a client here in Columbus after a 3 day jury trial. The client was pulled over at 2:53 am in a heavy construction zone in Columbus and within 7 minutes was arrested and charged with an OVI. The cruiser video system was allegedly malfunctioning and as a result there is no video corroboration of the field sobriety tests and the arrest. Client was held in the back of a patrol car until the Columbus Mobile Breathalyzer Unit arrived at the scene. At that time the client refused to submit to a breath test. My client testified at his trial. The jury was out for about 70 minutes and returned a not guilty verdict.

As many people know, defense verdicts are hard to come by so this was a big victory for my client and hard fought all the way!

+Charles Rittgers +Luke Rioux +Jason Dunkle +Brian M. Fishman +Brian Dennie 

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#OhioStatePatrol  Cracking Down on #DrugTrafficking  with #DrugDogs  

The Ohio State Highway Patrol is cracking down in #drugsmuggling  and #drugtrafficking  on Ohio's roadways. The patrol has four #drugdogs  that routinely perform #caninesearches  and #sniffdrugs  of vehicles pulled over for routine traffic stops. Reports show that #drugseizures  in Ohio have increased this year from 2012 - 137% in #methamphetamine  87% in #cocaine  and 25% in #heroin  .

In Ohio, as in other states, police can bring drug dogs around on any routine traffic stop, so long as police do not detain a vehicle for longer than the purpose of the original traffic stop - unless there is reasonable suspicion for the continued detention.
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