Defense Attorneys Say DUI Law Unfair

'Yellow-tags' law may be reversed for first-timers

By: Jonathan Athens
Advocate Reporter

The Newark Advocate
Sunday, January 4, 2004

NEWARK - A controversial new law that requires first-time drunken driving offenders to bear yellow and red license plates on their vehicles may be reversed if a recently introduced bill is passed.

Until then, critics say the new law unfairly stigmatizes first-time offenders, will clog up an already clogged criminal justice system, and can cause additional problems for those who must drive a company owned vehicle for work.

Supporters, namely Mothers Against Drunk Drivers, see the measure as another important step to saving lives and toughening penalties for repeat offenders.

"I'm absolutely opposed to it. It's ridiculous," said local defense attorney Robert Calesaric. "I think it's going to clog up the court system because the majority of my clients are going to want to fight an (Operating a Motor Vehicle under the Influence of Alcohol or Drugs) charge."

In early December, lawmakers introduced a correction bill that states first-time offenders will not be required to display the special tags, but repeat offenders must display them.

The bill recently passed the Ohio House and is expected to pass the Senate, said Gina Wilt, legislative aide to Rep. W. Scott Oelslager, R-Canton, the correction bill sponsor. Wilt said the initial bill, SB 123 passed with a known error - namely that first -time offenders would be required to bear the special tags and judges could look back as far as six years into a driver's report.

"It's easy to see there was a mistake made. We're trying to make it aware to judges and lawyers. Most everyone knows. It's very easy to see how the mistake was made and missed," Wilt said.

The error came about through specific wording of SB 123 that cross-referenced to new penalties.

Wilt said the idea for the special tags "were not for first-time offenders," but to serve as an additional punishment tool for judges to use on repeat offenders.

Donna Maines, president of the local MADD chapter, said requiring first-time offenders to bear the plates is good.

"I think it's great. If we can save lives, we've done something positive," Maines said.

Maines was unavailable for comment on the corrections bill.

When asked if police will be more likely to pull over a vehicle bearing such plates, Newark Police Chief H. Darrell Pennington said: "If you come up on a car that's been identified as a prior DUI offender and they are weaving, that fact is going to lead you to think it's another DUI. You can't just pull someone over. They have to have committed a violation."

Calesaric said the plates cause another legal conundrum in the debate about probable cause.

"This will be another factor to be thrown in there if they think they have the legal authority to pull someone over. These plates are going to boom for business - for defense attorneys," Calesaric said.

Although other factors such as bad driving, field sobriety tests and the results of breathalyzer tests are used to determine a driver's level of impairment, questions remain concerning the recently lowered "legal limit" for having alcohol in one's system.

The limit was .10 and lawmakers recently lowered it to .08.

"I've had clients charged with drunken driving even though they tested below the legal limit," said Calesaric. "One client was charged with drunken driving after he tested a .02."

The charges were eventually dismissed by local prosecutors, but the man still had to incur legal costs totaling more than $1,000 he said.

Pennington said the .08 limit is the cut-off point that means the driver is presumed to be impaired, but is not the final and only element an officer uses to determine if a motorist should be arrested and charged.

Calesaric said the decision to arrest someone who has tested below the limits is based on the individual officer's discretion, he said.