Speaker A: It is lawyer talk.

Speaker B: Time for another Q and A session.

Speaker A: this is a question I got.

Speaker B: Actually upstairs in law practice. I did not get it at the website, which doesn't mean that you're not able to send your own questions to Lawyertalk Podcast.com and use the question interview face there. Happy, to still take questions there and do and have lots of them in the hopper ready to go out. But this, question I received yesterday in my normal practice of law, as everybody may or may not know, I do criminal defense work.

Speaker A: And part of that I do a.

Speaker B: Lot of drinking and driving defense. In Ohio, we call that ovi.

Speaker A: I always say this about Ovis.

Speaker B: It's probably the most complex area of law.

Speaker A: Now, you would say, well, wait.

Speaker B: A minute, what about federal criminal defense and white collar defense and murder cases and child sex cases, et cetera?

Speaker A: Well, I mean, there's an argument to.

Speaker B: Be made there about severity of the consequences, but I'm talking about just fundamentally complicated legal, issues, scientific issues, administrative issues, etc. E. And here's what I mean by that. If you get an Ovi, it immediately implicates Fourth Amendment issues. In other words, there was a stop, there was a seizure, there was an arrest most often. And all those things have to be justified under the Fourth Amendment. And there's an entire body of law in the Fourth Amendment that's developed around drinking and driving traffic stops, in arrests. And then here in Ohio, we have field sobriety testing. So field sobriety tests involve administrative regulations.

Speaker A: they involve some pseudoscience.

Speaker B: I'm not going to actually call that science. And you have to understand what all the pseudoscience is, what the administrative regulations are, in order to admit, the results of the tests into a court hearing or a trial.

Speaker A: so it's got implications of pseudoscience.

Speaker B: Implications of administrative law, and then actually, going to court, question and answer, trial advocacy. and then beyond that, you have breath testing law.

Speaker A: Now this is like, again, I hate.

Speaker B: To say it's science, because that gives breath tests a measure of credibility maybe it doesn't deserve.

Speaker A: But there's a lot of stuff going.

Speaker B: On with breath testing and whether or not they're accurate. Do they measure the correct measure of breath, of deep lung breath? is the radio frequency interference? Are there power surges that can, change the outcome of the test? Does somebody have mouth alcohol or gerds gastric, reflux type of issues, even diabetes type issues, can arguably, impact the validity of those tests.

Speaker A: And then beyond that, you have.

Speaker B: Also corresponding administrative regulations designed to tell.

Speaker A: us when and when not those.

Speaker B: Are admitted into trial as evidence.

Speaker A: And again, you have the trial absolutely component, because I've had scientists on the.

Speaker B: Witness stand, I've called my own experts on the witness stand, and then you have just basic Ovi defense. You have to actually go into a courtroom, you have to try the case. You have to do all sorts of, you have to use every trick in the book, so to speak, as a trial lawyer. And beyond those issues, you have the administrative side of things. You have driver's license issues, you have suspensions that you have to deal with reinstatement, you have to deal with, insurance issues often come up.

Speaker A: in short, Ovi is as complicated as it gets.

Speaker B: I developed a series at one point called DUI 360, because I think you have to take a 360 degree look at Ovis when you get one, because it impacts so many areas of your life.

Speaker A: All right, with that preface, let.

Speaker B: Me get to the question.

Speaker A: I was resolving a case yesterday, and, my client was charged with.

Speaker B: Not his first offense, but second offense, obi.

Speaker A: Now, in most states, Ohio included, if.

Speaker B: You get your first offense, there's minimum penalties that, have to be imposed the second offense. Things start to get ratcheted up in here. In Ohio, if you're just convicted of a regular second offense under the state code, the higher revised code, that means it's your second offense in the last ten years. there's mandatory punishment that has to be imposed. Like, judges don't have discretion here. And if you're convicted of a second offense overi, you get a mandatory ten day, consecutive sentence. That means ten days in jail. And it's not like on weekends, so you can keep your job. It's like ten straight days. You go to jail and you get out ten days later. that's what, in theory, happens on a second offense. Ovi now, I had, some issues. I raised the constitutional issues in pretrial motions. I raised some administrative issues in pretrial motions. I believe the state, trooper, who, conducted the stop the arrest in the field sobriety test, did not follow the regulations and the rules correctly. We challenged that, and we were able to negotiate a resolution to the case.

Speaker A: and it was a decent resolution because I only had maybe a foothold.

Speaker B: Of issue, maybe we called a foothold.

Speaker A: Where I got a little bit to.

Speaker B: Push back, a little bit of leverage on the case. But it wasn't a slam dunk from.

Speaker A: My perspective, but it got the prosecutor.

Speaker B: Rather to the negotiating table, and he said, I will give you a stipulated first offense. Now, the question my client had is, what the heck is a stipulated first offense? Ovi this is something, folks, we call a legal fiction. Legal fictions are created when lawyers decide we're just going to agree to do.

Speaker A: It, this way, instead of what.

Speaker B: The law would ordinarily require. So by all right, if my client pled guilty to an Ovi, it's a second offense, because this one occurred within ten years of the last and it.

Speaker A: Should have been a second offense Ovi.

Speaker B: With second offense penalties, however, a stipulation is fancy lawyer talk words to say, we're going to agree to treat this differently. We're going to agree the parties, the prosecutor, the defense lawyer, the defendant. We're going to say, you know what, let's just pretend that this is only a first offense ovi? That way, if you plead guilty, you don't have to do that mandatory ten day kick in the backside. You're only going to do three days in a driver's intervention program over a weekend at a hotel.

Speaker A: you're not going to have the ratcheted up, supervision and all the other nonsense that might go along with.

Speaker B: A second offense in the jurisdiction where I was. And we're going to agree just to tell the judge, no, judge, this is a first offense. So a stipulated first offense is nothing more than legal mumbo jumbo nonsense to say, we're just going to act like it's a first offense, even though we all know it's a second offense. Well then, step two is you got to go to the judge and you have to say, judge, we're going to do a stipulated first. And the judge says, well, I'll go along with that or no, I won't. There was a judge in Franklin County Municipal Court who notoriously said, counsel, we don't treat anything like anything other than what it is in my courtroom. So that judge would never take a stipulated first offense. She just wouldn't do it. unfortunately, our judge yesterday agreed wholeheartedly to go along with a stipulated first offense. And my client then was able to resolve his case. We entered a plea of guilty. He got mandatory minimum m punishment on a first defense ovi. Now this does not mean here's another question arises on the heels, or on the wake rather, of, ah, a stipulated first what happens if I get another one? Is it only a second if I get another one? And the answer is a resounding no. A stipulated first isn't Ovi it's on your record. And if now you have two within ten years and you pick up another one, shortly after that, it starts out as a third offense ovi.

Speaker A: just to give you to whet your appetite and what that means, you.

Speaker B: Can start with 30 days in the clink on a third offense Ovi in Ohio.

Speaker A: After that, you start to get really.

Speaker B: Draconian with possible felonies, et cetera.

Speaker A: But, just because you had to.

Speaker B: Stipulate at first on your second time around or even on your third time around, it still counts as an Ovi, in the running tally. So if you picked up another one.

Speaker A: Well, call me. You'll need help because, it starts.

Speaker B: To get really ugly. So the question was, what the heck is a stipulated first Ovi?

Speaker A: Now you know the answer.

Speaker B: Stipulated first Ovi is where everybody just agrees to treat an Ovi as a first offense with first offense penalties, not multiple, offender penalties, just because we did. And that happened yesterday, for instance, because, we had a foothold of an argument we were able to negotiate, based on a constitutional challenge and an administrative challenge to the admissibility of the evidence.

Speaker A: So, everything worked out great for my client.

Speaker B: He was exceedingly pleased, and, we got the case resolved. So, that is my simplified approach at breaking down, Ovi negotiations here in Ohio.

Speaker A: And like I said, I'd like to make things simple.

Speaker B: And almost everything can be made simple here at Lawyer Talk podcast.

Speaker A: and if you've got your own.

Speaker B: Question, you've got your own concerns, or.

Speaker A: If, you just want to.

Speaker B: Comment or want us to discuss something here on Lawyerton, go to lawyertonpodcast.com. We've got our interface and, submit your question. and as always, if you happen to need legal help in any area, I can almost always refer you somewhere, if I can't do it in house. Check, us out@ohiolegaldefense.com. 614-224-6142 so this is Lawyer Talk. Hit me up with another Q and A off the record, on the air. At least until now.