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  • 3912 Prospect Avenue East
  • Cleveland, OH 44115
  • Phone: (216) 696-0900
  • Fax: (216) 696-8800

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Zukerman, Daiker & Lear Co., L.P.A.

Attorneys at Law

Dui / Traffic

Ten Ways to Beat a DUI - 8 through 10
Ways 1-4 >>>       Ways 5-7 >>>      Ways 8-10 >>>

8. Proactive Steps

Once a person has been charged with Operating a Vehicle while Impaired (OVI) there are many things that can be done to help prevent a conviction.  In certain cases, a prosecutor may be willing to reduce a DUI / OVI charge to a charge of reckless operation of a motor vehicle, or physical control of a vehicle while impaired.  The reduced offenses may carry less severe penalties than a DUI / OVI conviction.  Moreover, a DUI / OVI conviction remains on you record forever and cannot be expunged. To obtain a reduction, however, prosecutors often need assurance that the defendant does not have an alcohol problem, and is not likely to repeat his/her offense. This office refers many of its clients to the best substance abuse counselors in the area for chemical dependency assessments. These counselors will be able to determine whether being charged with a DUI / OVI offense was just a once in a lifetime mistake, or a symptom of a larger problem. If no problem is detected, this type of assessment is what a prosecutor might need to assure his/herself that recidivism is unlikely, and a reduction in charges is warranted. 

In addition to assessments, there is much investigating to be done on the part of defense counsel to ensure that all the evidence regarding a DUI / OVI charge is on the table. This office vigorously pursues any and all evidence through discovery motions and records requests.  Our attorneys investigate police stations, and any and all records of the arrest, including video or audio tapes. By the time we are done, we know exactly what evidence a prosecutor will have at his/her disposal when it comes to trial.  We will also know where the weaknesses in the case lie. No case can be properly evaluated until all of the evidence is discovered, and we make a habit of leaving no stone unturned. 

9. Destruction of Evidence

Whenever a person is charged with a DUI / OVI offense, the evidence regarding that charge must be preserved for a certain period of time.  Such evidence must be made available to the defendant, and if the defendant requests that evidence, it must be preserved by the police department indefinitely.  In every DUI / OVI case, this office promptly submits a litany of discovery motions, requesting every type of evidence that could be made available in a given DUI / OVI case before it is even known whether or not such evidence exists. This way, if there is evidence out there, it must be preserved, and must be made available to us and our clients. 

So, what type of evidence are we talking about?  Some police cars are equipped with dashboard cameras, which record the arrest of a DUI / OVI suspect, complete with audio. These videos are only available upon request, and are destroyed if not requested. They serve as useful tools in a DUI / OVI case.  For instance, an arresting officer may claim to have arrested a person for a DUI / OVI because he/she was slurring his/her speech and failed field sobriety tests. The video may confirm this allegation, but it may contradict it, showing the defendant to be more sober than as described by the arresting officer.  Imagine how useful this might be in defending a DUI / OVI case at trial. 

In addition to the arrest video, there are also booking videos in police stations which can be requested.  But the evidence in a DUI / OVI case does not consist of videos alone.  The police must also maintain the records of the machine used to test breath samples.  Sometimes these records show that the machine was not operating properly at the time a given breath test was taken.  Again, such evidence can serve to be very useful at trial. This, and all other conceivable evidence is requested by this office at the outset of every case to ensure it is available for purposes of defense. Occasionally, however, the police, or the prosecutor, or some agent of the state loses track of a piece of evidence.  In such circumstances, it may be possible to force a reduction of a DUI / OVI charge, or maybe even get the case dismissed.

The law requires that the prosecution provide any and all evidence pertaining to a given criminal case to the defense.  If evidence exists, and is requested, then subsequently destroyed or lost, a dismissal situation is created. Whether or not the evidence was exculpatory (i.e good for the defense), and regardless of whether the destruction was unintentional, it can be argued that such a mistake is grounds for dismissal of the charges. This office is experienced in such situations, and can use this accidental destruction of evidence to benefit our client’s cases. Unfortunately, a typical defendant in a DUI / OVI never knows what type of evidence is out there, much less whether or not it has been preserved.  It is one of many reasons people who are charged with a DUI / OVI offense need smart and aggressive attorneys to represent them.

10. Experience

No matter how many types of defenses are listed on this website, it would be impossible to go through each and every way to beat a DUI / OVI, or to have it reduced to a lesser charge.  Sometimes the arresting officer fails to cite to the proper ordinance allegedly violated.  Sometimes the judge fails to follow proper procedure at arraignment.  Sometimes constitutional rights are violated, without the defendant even knowing he/she had such rights to begin with.  As an attorney, it is important to be thorough, and to investigate every detail of each individual case.  Unfortunately, thoroughness is not enough.

What good is it to be aware of a detail, yet not be able to identify that detail as an issue on which to base a defense?  What might appear to be an innocuous fact to one attorney, may be the lynchpin to acquittal for another. That is why experience is so important, and this office has the experience to help you or someone you know in every possible way when it comes to defending a DUI / OVI case. For instance, Attorney Larry W. Zukerman, Esq., has been practicing law for over 20 years.  Mr. Zukerman is an adjunct professor at the Case Western Reserve School of Law, is a graduate of the National College of DUI Defense, and is a certified operator of breath test machines. S. Michael Lear, Esq., has been practicing law for over 16 years and was voted the best DUI attorney in Cleveland by SCENE Magazine. Paul B. Daiker, Esq., has been practicing law for over 13 years, is certified in conducting standardized field sobriety tests, and was named an Ohio Rising Star in 2005, 2006, and 2007 by Ohio Super Lawyers. If you would like to speak to one of our experienced attorneys right now, call (216) 696-0900 or 1-888-DUI-OHIO (384-6446) immediately!

Disclaimer � Copyright 2007 Zukerman, Daiker & Lear Co., L.P.A. All rights reserved.

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