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TOO MUCH HOLIDAY CHEER? New Drunk Driving Laws May Dampen Your SpiritsBy Ralph BussWith the Holiday Season upon us, it's not unusual to be invited to a Thanksgiving family dinner, Christmas party or New Year's Eve office get-together where alcohol will be present, and often even promoted. While I would never advocate driving or riding under the influence of alcohol or drugs, it's a situation most of us have found ourselves in at one time or another. My best advice is to "Just Say NO," or at least drink responsibly -- eat plenty of food to help absorb the alcohol, or pace yourself and avoid letting the alcohol build up in your system. It's a common misconception that it's against the law to drink and drive, but it's actually only illegal if your blood alcohol level (BAC) is above legal limits (DWI - Driving While Intoxicated, or OVI – Operating a Vehicle under the Influence), or if the alcohol in your system interferes with your ability to operate a motor vehicle (DUI - Driving Under the Influence). Having a couple of beers or drinking some wine with dinner, and then driving home, is legal unless you have one too many. So, what do you do if you find yourself at a party, feeling tipsy, with no place to go but home and no way to get there except your car or motorcycle? Again, my best advice is to wait, eat, call a cab, ride home with a friend, or otherwise stay out from behind the wheel of your car or off your bike. But reality is much different, and reality is often blurred by that point. If you feel that you must operate a motor vehicle, the best way to avoid a DUI or DWI conviction and all the nastiness that comes with it is to avoid being a target for the police. Determine a route home that is not a main thoroughfare or through a known bar area, where police are likely to be watching for drunk drivers. Check your timing, and don't leave at "beer-thirty", just before or after closing time. Before you go out on the town, make sure your car or bike is in perfect working condition; no lights out, no broken tail lights, nothing to draw attention to your vehicle. Know where your license is, as well as your registration and proof of insurance, so that if you're pulled over you won’t have to fumble around for anything. Mind all traffic signals; red means stop, green means go. Be aware of your driving and avoid making any sudden movements across lanes, swerving, over-correcting, or going too wide around turns...all tale-tell signs of someone who shouldn't be on the road. Double-check to make sure your lights are on! Signal all your turns. Watch your speed. It's also best to stay in the slow lane. Don't give the police a reason to stop you! It would also be advisable to roll down your rear windows a crack and turn up the fans in your vehicle to move the air around and remove that party atmosphere. Chew some gum, take a breath mint, gargle with some mouthwash, or even smoke a cigar or cigarette to eliminate the smell of alcohol on your breath. The number one reason police give for arresting someone for drunk driving is the smell of alcohol in the car or on your breath. A couple of drops of Visine would also help to "Get the Red Out." If you do see flashing lights in your rear-view mirror, don't panic and by all means do not try to outrun the police or crash a road block! Signal and pull over smoothly to the side of the road. Stay in your car or on your bike, and keep your hands in plain sight. Be polite at all times, but be sure to assert your rights. If nothing else, it will give your attorney something to work with. "Where are you coming from?", will probably be the first question you hear. Think twice before volunteering that you just left the local bar. Working late or having dinner with a friend sounds much less incriminating. If you are stopped while pulling out from a bar, you might consider telling the officer that you were waiting for a friend who didn't show up, or the prices were too high, or it was too crowded and you decided to go home. The officer will invariably ask you if you've had anything to drink. It might be best to answer "no, sir" than to admit to it and then face the litany of follow-up questions: “How much, where at, how long ago?” At this point it would be advisable to ask the officer if you are under arrest or free to go. If he or she says that you are under arrest or being detained, your conversation should end with the statement that you want your attorney. Police officers are trained to get you to admit guilt, and can be very tricky in getting a confession out of you. Therefore you should tell them that under advice from your lawyer you wish to make no further statements. If you are placed under arrest: * Do not speak with or be interviewed by the police. * Do not submit to any roadside sobriety tests, as they are subjective and not required by law (not to be confused with a Breathalyzer test: see below). * Do not consent to any searches. * Do not waive any of your rights. * Do not resist, and be polite at all times. * Do request to leave the scene. * Do request to contact a lawyer. Should you consent to a Breathalyzer or blood test? While the answer to this may vary depending upon you and your legal situation, you need to know that the law in Ohio changed recently and it is now a separate crime for you to refuse to take a chemical sobriety test if you are placed under arrest for operating a vehicle while intoxicated and you have a prior conviction within the past six years, or two convictions within the past 20 years. It’s no longer just a matter of automatically losing your license if you refuse to take the test, as the new law subjects repeat offenders who refuse to take a blood, breath or urine test to the same penalties as if they had tested a blood alcohol content (BAC) level of .17 or above, and constitutes an additional criminal act with penalties ranging up to a year in jail. As evidence of the legislature’s zeal for reducing drunk driving, the law also now allows the prosecution of an attorney who advises a client to not take a chemical sobriety test for complicity or obstruction of official business and may charge them as a codefendant in the case. On June 24, 2004, Ohio Governor Bob Taft signed House Bill 163 into law, which also increases the penalties and jail time for repeat offenders who drive while intoxicated. This new law took effect on September 22, 2004, and not only increases the mandatory penalties for persons with prior convictions, but also extends the look-back period from six years to twenty years – meaning that the courts can now look into your past criminal history for up to twenty years to check for prior DUI convictions. The new law calls for keeping DUI offenders off the roads for longer periods by adding a mandatory one-to-five-year prison term for persons convicted of five or more prior DUI offenses in the past twenty years, whereas previously mandatory sentencing for repeat offenders could not exceed 120 days. If you are charged with a drunken driving offense, it is important that you contact an attorney immediately. Don't wait until the day before you are to appear in court! This is a serious offense that may cost you jail time, loss of license, fines and a dramatic increase or cancellation of your insurance. Alcohol-related crashes result in more than 300 deaths and more than 14,000 injuries each year in Ohio, according to the Ohio State Highway Patrol, and there are more than 300,000 repeat drunk driving offenders in Ohio; 28,000 of which have five or more drunk driving convictions. Before you have your next drink, ask yourself if it’s really worth it. The above is not intended as legal advice, and is certainly not advocating driving drunk. However, in my legal practice I have successfully defended many clients who were not “drunk drivers,” and were no threat to themselves or others on the road. Have a safe and happy Holiday Season, and call me if you have any legal questions: (800) 582-5577.
PROPOSED HELMET LAW CHANGES FOR OHIO Sec. 4511.53. (A) For purposes of this section, "snowmobile" has the same meaning as given that term in section 4519.01 of the Revised Code. (B) A person operating a bicycle or motorcycle shall not ride other than upon the permanent and regular seat attached thereto, nor carry any other person upon such bicycle or motorcycle other than upon a firmly attached and regular seat thereon, nor shall any person ride upon a bicycle or motorcycle other than upon such a firmly attached and regular seat. A person shall ride upon a motorcycle only while sitting astride the seat, facing forward, with one leg on each side of the motorcycle. No person operating a bicycle shall carry any package, bundle, or article that prevents the driver from keeping at least one hand upon the handle bars. No bicycle or motorcycle shall be used to carry more persons at one time than the number for which it is designed and equipped, nor shall any motorcycle be operated on a highway when the handle bars or grips are more than fifteen inches higher than the seat or saddle for the operator. No person shall operate or be a passenger on a
snowmobile or motorcycle without using safety glasses or other protective
eye device. No person who is under the age of (C)(1) Except as otherwise provided in this division, whoever violates this section is guilty of a minor misdemeanor. If, within one year of the offense, the offender previously has been convicted of or pleaded guilty to one predicate motor vehicle or traffic offense, whoever violates this section is guilty of a misdemeanor of the fourth degree. If, within one year of the offense, the offender previously has been convicted of two or more predicate motor vehicle or traffic offenses, whoever violates this section is guilty of a misdemeanor of the third degree. (2) In all cases involving a violation of this section by a person who operated a motorcycle or rode as a passenger on a motorcycle and failed to wear a protective helmet when required by this section, notwithstanding section 2929.28 of the Revised Code, the court shall impose upon the offender a fine of five hundred dollars and allow the offender to choose either a weekend jail term or attendance at a safe and responsible driving instructional class described in section 4501.40 of the Revised Code. If the offender informs the court that the offender will be unable to pay the fine, the court shall not impose any fine but shall sentence the offender to a weekend jail term. (D) A fine that is imposed under division (C)(2) of this section shall be distributed as follows: (1) One hundred twenty-five dollars shall be paid to the county treasurer if the court is a county-operated municipal court or to the city treasurer if the court is not a county-operated municipal court. The treasurer shall credit this portion of the fine to a fund to be used upon an order of the court to pay any court expenses the court determines should be paid from the fund. (2) One hundred dollars shall be deposited into the state treasury to the credit of the traumatic brain injury fund created by section 3304.232 of the Revised Code. (3) Two hundred seventy-five dollars shall be deposited into the state treasury to the credit of the safe and responsible driving instructional fund created by section 4501.40 of the Revised Code. (E) As used in this section, "weekend jail term" means a minimum of thirty-four consecutive hours that commence not later than eight a.m. on a Saturday. Section 2. That existing sections 3304.23, 3304.231, 4507.164, 4509.101, 4510.11, 4510.12, 4510.14, 4510.16, and 4511.53 of the Revised Code are hereby repealed
GET A TUNE-UP BEFORE YOU RIDE! By RALPH C. BUSS, Attorney for Motorcyclists
Spring has sprung and motorcycle riding season is upon us, but before you dust off the saddle and head out on the highway, be sure to give your insurance a Tune-Up to make sure you’re properly covered in case some “cager” isn’t used to looking out for motorcycles yet.
Nobody likes to think about insurance, or about having an accident and needing it. But, bike or car, you've got to be prepared with the right information, legal advice, and above all, the right insurance.
"But I've got full coverage," you might say. Well chances are that you don't, not unless you have HIGH LIMITS of uninsured/underinsured motorist, and the right kind and amounts of other important coverages!
In my law practice I’ve had many clients who thought they had “Full Coverage” insurance, but that doesn’t necessarily mean that you, your passenger(s), your property or that of the other party’s are always covered, or fully covered. If that sounds complicated, well so is insurance, and that’s why you should always read your policy and know what you’re covered for.
For example, you can tell your insurance agent that you want Full Coverage insurance, but the policy you wind up with may not include Uninsured/Underinsured Motorist coverage, arguably the most important coverage, because in Ohio they are not required to even offer it to you. Also, while you may believe that your bike is fully covered, you may discover some day to your misfortune that it was only insured for market value (“Blue Book”), or that your add-ons and custom accessories are not covered.
So go get your policy and let’s take a look at the various coverages that you need to be concerned with. If you have any questions, or want to change your policy after you read this, you should contact your agent or insurance provider.
Uninsured/Underinsured Motorist (UM/UIM): By far this is THE MOST IMPORTANT COVERAGE you need, bike, truck, or car. Buy the highest limits you can. This protects you, typically your passenger, and even relatives in your household for injuries in any UM/UIM wreck for medicals, pain and suffering, lost wages, and future losses. You still need a lawyer to wring the money out of your own company, but at least there will be something there to get at, if you have high limits. UM/UIM is used when it's someone else's fault, and they either have no insurance, or not enough insurance to cover your damages. Ohio only requires "12.5-25", the lowest in the country, which covers bodily injury up to $12,500 per person/$25,000 per accident; not enough in most bike accidents. For example, the average hospital stay for a serious leg fracture is around $50,000.
WHAT TO BUY: As much UM as you can. Not less than $100,000 per person, more if you can. It is not too expensive. One way to pay for more UM is to raise the deductibles (your "co-pay") in your collision and comprehensive policies.
Liability: Also known as "BI" (bodily injury). Your BI pays for someone else's injuries, not yours, only if an accident is your fault. Likewise the other guy's BI pays you if it's his fault. This is for all damages, present and future, including pain and suffering, except for property damage. Ohio only requires "12.5-25", or up to $12,500 coverage for each person's claim per accident, and only $25,000 for all claimants combined for each accident. That's very inadequate.
WHAT TO BUY: Get at least "50-100", preferably "100-300" or even more. If you hurt someone else on a bike, it is likely to be your passenger. You want that person to get a decent monetary recovery if there's a serious injury. And whoever is hurt, you don't want their lawyer to come after you personally and take your property, just because your BI insurance limits were too low.
Property Damage (P/D): Your PD pays for damage you do to someone else's property. Ohio requires a minimum of $7,500. Buying more doesn't hurt, since most new cars and bikes cost more than that these days. This does not cover your own bike. That's under either Collision, Comprehensive, or UM/PD.
Uninsured Motorist for Property Damage (UM/PD): It's a good buy, and usually fairly cheap, but if you already have collision coverage, it's probably not necessary. As the name implies, UM/PD covers damage to your bike if it's the other driver's fault and that driver has no insurance. UM/PD may also pay for your leathers and helmet damage, while collision ordinarily won't. Also, UM/PD typically has no deductible.
Medical Payments (MedPay): is personal injury protection, but may not provide a lot of protection because of the cost and the fact that most companies only offer small amounts (typically only up to $500 -1,000, though your carrier may offer higher limits). MedPay is a stopgap coverage that pays whatever your health insurer doesn’t (up to the purchased limit), which may be a lot.
Collision: Just covers your bike, minus a deductible, for damage from a crash of any sort, regardless of fault. Not required, except by finance companies to protect their loan if you finance a new or used vehicle. It's not cheap, but the higher your deductible, the cheaper the premiums.
Comprehensive: Also just covers the bike, but for other losses, such as fire and theft. Not required by law, but usually worthwhile to add. Again, most finance companies require “Comp/Collision” coverage. Higher deductibles also get you cheaper premiums.
Accessories: Most insurers will offer additional coverage for your accessories, but such insurance is not intended to cover chrome replacement parts or custom paint jobs, but will cover add-ons such as saddlebags, tool kits and even your helmet and leathers. Premiums are usually based on a percentage of the value you wish to insure your accessories for.
Premiums: Once you figure out what types of coverage you want for your bike or car, be sure to compare rates with other carriers. They can and do vary widely, and it pays to shop around. Call agents, including your own, and some independent brokers.
Ride Safe, Ride Protected!
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