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Dale Naticchia, Cleveland, Ohio DUI Lawyer Interview Transcirpt
RJ: Hi, this is Richard Jacobs from myduiattorney.org and I’m here today with Dale Naticchia, a criminal defense attorney in Cleveland, Ohio area. How’re you doing?
DN: How’re you doing?
RJ: Good, good. Thanks for taking the time today to do the interview. I really appreciate it.
DN: Sure.
RJ: And if you’re ready, we’ll jump right into the questions.
DN: Yes, I’m ready now.
RJ: First question is:what motivates you to be a criminal defense attorney and why in particular, do you work on a lot of DUI cases?
DN: Well, you know, in the twenty-five years that I’ve been practicing, I’ve practiced in a lot of different areas of law including corporate law. But I like things on an individual basis and people that get involved in the criminal system have a real immediate need and to do something good for them, to help them through, they’re very appreciative and that motivates me but OVIs especially and DUIs as they call them; they’re people, they’re very good people that have never been involved with the system before.
They either made a mistake of judgment or the officers made a mistake of judgment. They find themselves in a very bad situation and I can help them out and it always makes me feel good when they come out and they feel good about themselves and the result.
RJ: Ok and over 25 years, how many DUI cases do you think you’ve handled?
DN: How many?
RJ: I mean just a guesstimate.
DN: On an average, my caseload for OVIs is between a hundred and twenty-five to a hundred and fifty DUI cases a year for the past, say, ten years.
DN: And that’s in all of northeast Ohio.
RJ: Oh that’s over a thousand cases, that’s a lot.
DN: It is and you have to have the proper staff to do these cases properly because you have to be very detail oriented. There’s a lot of things that go on with these cases and they happen in a hurry so I have a staff that knows what to ask and what to look for and has all the courts and bailiffs on speed dial so we can get things done quickly.
RJ: You have worked on a lot of cases and have a lot of DUI experience.
DN: Yes and it is important to know the law as it is to know the people that are involved with the system because one court might handle a case totally different than another court. Every prosecutor is different - courts want to see different things. They have different procedures and you have to be familiar with those procedures to effectively represent your client.
RJ: Ok so of the people that you see, is there any typical person? More men or women or first time people?
DN: I would say between men and women, it’s about a fifty-fifty split; many times, there are people that are involved in bad circumstances like there’s been a death in the family or they’re going through a nasty divorce, something traumatic has happened in their lives that made them change their normal routine pattern that involves more drinking and they make a mistake in judgment and end up in a bad situation.
RJ: Of the clients that you had, are more of them close to the 0.08 limit or are their Blood Alcohol Level’s usually higher?
DN: I would say, the most normal that I seeis between 0.1and 0.15.The legal limit is 0.08; I get very few that are 0.08 or slightly above and not that many over 0.20 but I would say between the 0.1and the 0.15 range is mostly what I see.
RJ: And I guess just out of fun, what’s the highest BAC level you’ve ever seen in someone?
DN: 0.459 in Twinsburg, Ohio in the afternoon, my client was leaving a swimming pool.
RJ: Wow.
DN: A public swimming pool. The next day, he was starting rehab in Tennessee.So he was actually swimming.
RJ: So of the DUI cases you see, are they more due to drugs or more due to alcohol?
DN: Mostly alcohol, although it’s not uncommon to get a case where, in fact, when the person is arrested, they do a search of the car and they come up with paraphernalia or marijuana. Testing for drugs there are, in Ohio, there are levels for certain drugs in your system including marijuana.
Marijuana it’s ten out of grams to one milliliter of urine, they have to do a urine or blood test, that’s a very low level and in marijuana, the marijuana metabolites stay in your system for approximately twenty-eight days so it could have a cumulative effect and you might not have smoked for two days, they stop and believe you are impaired, do a urine analysis and find out that you are over the legal limit for marijuana.
RJ: And they’d still charge you with a DUI?
DN: Absolutely and it’s becoming more common that I see prescription drugs, that’s mostly what I see and even though you are taking the drug as prescribed by the pharmacist, if you are under the influence or impaired and the officer can say ‘he was acting sleepy, it didn’t seem like he knew what he was doing’, you’ll be charged with an OVI and I’ve had many cases where people were taking drugs such as Soma or Xanax in the prescribed dosage and they ended up being charged.
RJ: It may be hard to say in general with those kind of cases, but is it harder to defend them? Do they usually have bad outcomes or good ones?
DN: It’s different to defend them because you’ve got a person that first of all, has admitted to taking the drugs so the issue becomes, is that person impaired? Unfortunately, you’re stuck with the officer’s testimony that’s going to say ‘Well, he looked like this, he reacted, his reaction time was slow’ and the way to counter that is you get the video, you get the booking video, you get the dash cam video to counter what the officer is saying about the client and it’s certainly a mitigating factor where a client has been taking medicine as prescribed and no one has warned him or her that such could impair their ability to drive and in fact, that is many times the case.
RJ: Well how about in the circumstance where, talking about marijuana, if someone hadn’t smoked it in a week and they’re pulled over and they’re tested and arrested for DUI. In that case, is it any easier or still, just the same?
DN: Basically any time you have a lab test, you have more issues: everything has to be handled properly, there’s a chain of custody that has to be established and it has to be handled in a very specific fashion as determined by the Ohio Department of Health. And the prosecution bears the burden to show that all those rigorous procedures have been followed so any time there’s a blood or urine test involved, whether it be alcohol or drugs, it opens up the doors to a lot of the offenses and many times I am able to keep the tests out of evidence which gives the prosecution very little to go on.
RJ: I don’t mean to keep pushing on this but I’m curious: if the test was admitted and again, let’s say if it was marijuana… well I guess it depends on what the person says. If they said they hadn’t done anything in ten days, for instance, could they prove impairment?
DN: Well, this is the trick, the trick they have with the per se level, it’s just presumed and it’s a non rebuttablepresumption. The law says you are impaired if you’re over a particular limit, that’s what makes all these cases so difficult. You have to start chopping away at the prosecution’s case from the first day if they have a good result that says that you are over the legal limit, you’re guilty and that’s what makes OVI different. It’s the only crime I know where there’s actually a guilty machine. You blow into the machine and you’re guilty.
RJ: Ok earlier you talked about the police searching your vehicle, what are the rules on that? Do they have to be allowed to do that, what circumstances can they search?
DN: Well, there is an exception, of course the Fourth Amendment protects us from warrantless searches to a degree and there’s a whole host of exceptions. Exception for the drunk driving arrest is that they call it an inventory search because the car is going to be impounded somewhere, the theory is to protect the officer, the police department and the city from claims that things were missing out of the car, they do an inventory search to say this is what was inside the vehicle.
That gives them the excuse to search the car but many times if they do find something that’s leading to charges for your client, you could say ‘alright you did an inventory search, let’s see the inventory list’. If they have no inventory list, why are they searching the car? I mean that’s the question.
RJ: Is there a difference before you’re arrested, if you can refuse or after you are arrested?
DN: Absolutely, it’s before you’re arrested, they have to have proper cause to get in the car, they have to see something. The most common Fourth Amendment exception is plain view; they see a pipe, a marijuana pipe laying on the back seat, they see a beer can on the passenger side floor, something in plain view will give them the reasonable suspicion and proper cause necessary to allow them to search your car illegally so you want to keep your car as neat as possible.
DN: Not too much trash lying around. Also, a lot of times it’s the smell, you know they can smell something and it’s really hard to disprove what somebody smelled. I had a client one time that was stopped, he was driving on the freeway and the officer said he smelled the marijuana as he drove by at sixty-five miles per hour.
DN: Why they need drug dogs if they have people like them?
RJ: What kinds of help can you provide to people who’re charged for DUI orOVI. Can you possibly reduce jail time or fines or what kinds of things you can do?
DN: Well there’s a whole host of bad things that can happen to you with an OVI arrest. The system moves very quickly; you have five days, you have a hearing within 5 days first of all on appealing, what they call the administrative license suspension. You have thirty-five days from the date of arraignment to file a motion to suppress. You have to have all your information analyzed before the35 days is up.
People have concerns too, there’s a lot of people, like in Ohio, a first time offender, you can’t drive for fifteen days; for a lot of people, that is a death sentence because they have to drive to get to their job so a lot of times, what they’ll want to do is they’ll want to risk driving and if they’re picked up, now they’re facing another first degree misdemeanor which is driving under suspension which they don’t want to have.
There’s ways, so you know you consider your client’s circumstances; it’s very important for your client to get out as quickly as possible, you’re going to try to find ways to get him on the road legally before that 15 days is up. For some people, there’s other concerns, you always take their concerns, see what’s important to them and see if you can resolve these issues as quickly as possible.
There’s a lot of things that you can do for your client, you can save them a lot of grief and you can defend the case, you have to defend the case vigorously and along the way, there’s all these procedural devices that you have to be beware of and you want to make this event the least intrusive on your client as possible and that’s what I’ve succeeded in doing with ninety-eight percent of my clients.
RJ: Wow - So what would you say of the pros and cons of hiring a private lawyer versus a public defender versus defending yourself?
DN: Defending yourself would be a problem, you wouldn’t know everything that was going on; you would have no idea of the implications of what was going on. The courts, when they bring you up in front of them and if you plead no contest or guilty, you don’t know what’s going to happen to you. You’re not going to understand even what the court is saying because they explain it so fast; it’ll just go right over your head.
Public defenders are definitely necessary lawyers because there’s a lot of people that just can’t afford an attorney and it’s better than having nothing but you have to remember, they handle hundreds of cases, they have a huge case load and they can’t devote the attention to your case that a private attorney would and the private attorney, at least what I do, the first thing out of the box, I spend an hour to an hour and half going over all the details of the arrest as well as what their needs are.
And then I explain to them what’s going to go on and what we’re going to do and how we’re going to approach it because based upon what they’re telling me, I’m going to emphasize certain defenses that I’m going to be looking for and they understand and they could call me at any time of the day. I give all my clients my cell phone number so if they have a concern, I let them call me because I know that they’re very uneasy about what’s happening, they’re depressed, a lot of them are depressed, a lot of them, especially people are very sensitive, they’re very sensitive to what’s going on.
People that have never had a brush with the law before all of a sudden see themselves as some type of criminal element and I try to dispel that myth and try to explain to them that ‘look, this is a crime that 95% of the population is guilty of. It just so happens that you got caught and they usually, especially the first time offenders, beat themselves far worse than the court room.
RJ: Well I guess you have answered a lot of the next question I was going to ask about your insights into people’s behavior and their reactions to being arrested, but I mean, what are the human insights have you gained into the whole process; anything more you want to say?
DN: Well first of all, it starts from the very beginning, being stopped by a policeman. They ask you to do a field sobriety test, people are scared out of their wits, they don’t know what to think, they’re not listening, all they’re thinking is they’re in trouble and the officer, when he administers those field sobriety tests, gives a lot of instructions quickly and they grade you in ways that you would never, you wouldn’t believe but they’re also seeing how you follow instructions so people are afraid.
People are embarrassed, people don’t know what’s going to happen to them, they don’t know how it’s going to affect their lives, they don’t know how they’re going to get through it and I give them this information upfront. I let them know the various specific details of their case and the court that we’re in and what we can probably do for them and that’s, it relieves them to a degree but the people are very sensitive to what goes on and helping them through the process, as I say, to me, that’s very gratifying.
RJ: Is there a particular story that you hear over and over from the potential clients?
DN: Yes, the story that I hear is that this judge’s daughter was killed by a drunk driver. The mythical hanging judge whose got an axe to grind because a family member was killed by a drunk driver. I never met that judge but that rumor runs rampant.
DN: I don’t know where they get that rumor from, if it’s a scare tactic that somebody tells them but I’ve never known a judge whose child was killed by a drunk driver.
RJ: So do you feel the current DUI/OVI punishments are too harsh or they’re too lax and why?
DN: Well I think, first of all, that that there has to be laws against drunk driving because people driving drunk on the roads is going to cause a lot of misery, death and injury. So there has to be some laws but one of the bad aspects of an OVI is that it stays on your record 50years and you can never seal it in Ohio. I think that that’s very unfair.
In other states such as Pennsylvania, you can have the first one taken off your record. With communications science the way it is now, if any employer gets a background check on you and you have an OVI, it’s going to show up and they keep it on your record for fifty years. I think that that’s terrible. I think the restricted plates are terrible, I think they interfere with people working and it serves no good purpose. I wish that the system would be more serious about screening people that need treatment, need help, instead of punishment and I don’t know where we are headed in that direction but I certainly hope that we’ll see that sometime in the future. Otherwise these people, it doesn’t matter what the punishment is, they’re going to go out there and they’re going to do it over and over again whether or not they have a license.
RJ: I guess you’ve answered this but I mean, what do you see as the future of OVI in terms of the punishments, the number of offenders?
DN: I think the laws will become more severe. DUI law is driven by the media - the OVI law. They sensationalize anything that happens with a drunk driver and you’ll notice, even if there’s an accident, the media will make know that there was no alcohol involved. I mean everybody’s interested ‘what about the alcohol?’
So as a result, they’re highly publicized cases and the judges are concerned for their own reputations and their own careers that if they go easy on someone that it might come back to haunt them because if this person, at some later date, gets in a car and kills somebody, the media is going to be in their chambers.
Police officers are very much the same way - police officers used to give a questionable call, somebody that was questionable, whether or not they’re impaired, they give them a break. Not now because they’re afraid, they’re afraid that their careers will be ended if they let this person go and this person ends up in a car accident. So the media has a lot to do with it and I can see nothing; it’s very political, very politically popular to be harsh on drunk drivers so I think the laws will become more and more severe.
RJ: Do you think even the name ‘drunk driving’ is a misnomer or is it appropriate?
DN: At this day and age, it is a misnomer because it is operating a vehicle while impaired. You don’t have to be drunk, just impaired. It’s a very broad law so it is a misnomer.
RJ: And the last thing I’m going to ask you is you know what makes your firm unique in providing the DUI defense and what statement do you want to make to potential clients that watch these videos?
DN: Call an attorney immediately and if not me, another attorney. Call around for attorneys and see what information they give you. If they can answer your questions, see how many of these cases they handle, if they’re familiar with that court and tell them, ask them whether or not you have any defenses based upon the facts that you give them. Be careful when you are looking for an attorney but you do need an attorney, but if you ask the attorney questions and he answers them to your satisfaction and you feel comfortable with them then certainly, hire him or her.
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