Columbus OVI/DUI Attorney Blog

Articles Posted in DUI/OVI Constitutional issues

If an officer’s testimony about a traffic stop is not corroborated by the officer’s cruiser video, how do judges rule on the justification for a traffic stop? Once a judge makes a ruling, under what circumstances might that ruling be overturned by an appellate court?  A recent case decided by the Tenth District Court of Appeals in Columbus, Ohio illustrates the discretion judges are given regarding evidentiary issues in OVI motion hearings.

The case of State v. Comer was decided in December of 2014. In Comer, the defendant was charged with OVI and filed a motion to suppress evidence. The motion claimed all evidence obtained after the stop of the defendant’s vehicle should be suppressed because the traffic stop was unconstitutional. At the motion hearing, the officer testified she observed the defendant’s vehicle “weaving and crossing the lines” and “almost hit the concrete divider”.

Video camera in cruiser

The video from the officer’s cruiser did not clearly show the defendant’s vehicle crossing the lane line. The defendant argued the video undermined the credibility of the officer, so the judge should find there was no marked lanes violation and therefore no justification for the stop. The prosecution argued the video was inconclusive regarding the marked lanes violation (due to the glare from streetlights and the distance between the cruiser and the defendant’s vehicle), and the officer’s testimony alone was sufficient evidence the defendant crossed the lane line.


The trial judge found, based on the officer’s testimony, there was a marked lanes violation justifying the traffic stop. The defendant plead No Contest and appealed the trial court’s decision to the Tenth District Court of Appeals.

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Suppose an officer detains a person for violating a traffic law and it turns out the person really didn’t violate the law: the officer was simply mistaken about what the law says. Until recently, one would expect that any evidence obtained after the mistaken detention would be thrown out. In a recent case, however, the U.S. Supreme Court concluded any evidence obtained after the officer mistakenly detained the person is not excluded from trial, so long as the officer’s mistaken belief about the law was reasonable.

The case is Heien v. North Carolina. A police officer was watching traffic on a road in North Carolina when the officer observed Heien’s Ford Escort pass by. The car was being driven by Maynor Javier Vasquez, and Heien was a passenger. The driver was not driving recklessly, was not speeding, and was not violating the law in any way. The officer followed the car because the driver looked “very stiff and nervous”, then stopped the car for what the officer believed was a brake light violation. The car only had one working brake light, and the officer did not know that North Carolina law only requires one working brake light.


As the officer was issuing a warning ticket for the broken brake light, the officer became suspicious because the driver and passenger gave inconsistent answers to his questions regarding their destination. The officer asked Heien if the officer could search the vehicle. Heien consented. The officer found cocaine in the vehicle, and Heien was ultimately charged with and convicted of Attempted Drug Trafficking.

Heien’s conviction was reversed by the North Carolina Court of Appeals, but that decision was reversed by the North Carolina Supreme Court. Heien appealed to the United States Supreme Court. The U.S. Supreme Court accepted the case to answer this question: can an officer’s mistake of law give rise to the reasonable suspicion necessary to uphold the seizure under the Fourth Amendment?

The U.S. Supreme Court answers that question in the affirmative. In an opinion written by Chief Justice Roberts, the Court concludes that, if an officer stops a vehicle based on the officer’s mistake of law, and if that mistake is reasonable, the stop is justified under the Fourth Amendment. The Court reasons that people, including law enforcement officers, make mistakes, and an officer’s mistaken belief should only result in evidence being excluded if the officer’s mistaken belief was unreasonable. The Court supports this reasoning with citations to cases from the 1800s. Those cases did not involve the scope of the Fourth Amendment, and the Court’s opinion admits the cases are not on-point. The Court also compares officers’ mistakes of law with officers’ mistakes of fact. There are cases holding a detention may be justified even if an officer made a mistake of fact.

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It won’t win a Pulitzer Prize, it will not be mentioned with the New York Times best sellers, and it will not be at the top of readers’ ‘wish lists’. In fact, most people may not find it very interesting. If you are charged with a DUI/OVI in Ohio, however, this book suddenly becomes a must-read. I’m talking about the new book: I Was Charged With DUI/OVI, Now What?!

I wrote the book to answer the questions most commonly asked by people charged with OVI.Cover image from book.jpg After answering those questions for 17 years, I recently came to the realization there was not a published book designed for individuals charged with OVI in Ohio. I thought it would be helpful to create a book which explains ‘what you need to know before going to court and before hiring an attorney for DUI/OVI in Ohio‘.

The book, published a couple weeks ago, is divided into four parts. The first part reveals what prosecutors need to prove for a person to be found guilty of OVI and outlines the potential consequences of an OVI conviction. The second part addresses the evidence used in OVI cases, including field sobriety tests and blood/breath/urine tests. The third part discusses the court process and its various stages. The fourth part addresses how to find a good OVI lawyer.

The book is available online through Amazon and Barnes & Noble. The suggested retail price of the paperback is $9.95, and the e-book costs about half that. With the percentage I receive in royalties, I may buy a few cups of coffee…. The book is obviously not designed to be a money-maker for me. In fact, I will email a pdf version of the book to anyone who requests it, and I intend to make the paperback available in central Ohio libraries.

The book is designed to help people charged with OVI. People in that position need help, and one way I can help is providing this book. I can’t represent every person who contacts me after being charged with OVI: I typically only accept one new client per week. I certainly can’t field calls from every person who has questions about Ohio OVI laws. I can, however, answer those questions in the form of this low-cost book. I hope the book provides valuable information which is helpful to many people charged with DUI/OVI in Ohio.

We are all urged to call the police if we suspect someone is driving under the influence. This message comes to us in radio and television commercials, on billboards, and on cruiser license plates: 1-800-GRAB-DUI. If someone makes the call, when should the police be permitted to stop the driver based on that informant’s tip alone? This question is a hot topic in Ohio DUI/OVI law this year. Two Ohio appellate courts decided ‘informant tip’ cases last month, and the United States Supreme Court decided one earlier this year.

The two recent Ohio cases of State v. WhemLicense plate of trooper cruiser.jpg and State v. Whitacker have many similarities. In both cases, an informant called the police to report a suspected drunk driver. In both cases, the police stopped the suspected drunk driver without observing any additional evidence the driver was under the influence. In both cases, the defendant filed a motion to suppress evidence and argued the informant tip did not justify the traffic stop. In both cases, the trial judge overruled the defendant’s motion to suppress. In both cases, the defendant appealed to the Court of Appeals.

Whem and Whitacker have different outcomes. In Whem, the Court of Appeals agreed with the trial court the initial stop of the defendant was justified. In Whitacker, the Court of Appeals disagreed with the trial court, concluding the stop of the defendant was illegal.

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If a driver is pulled over and charged with a criminal offense, can the police search through the data on the driver’s cell phone? That question was recently addressed by the United States Supreme Court. The case does not directly involve a DUI/OVI, but it’s definitely worth reporting in this blog. This is a significant case in the area of search and seizure law, and there are frequently search and seizure issues in DUI/OVI cases.

The case is Riley v. California. Riley was stopped for a traffic violation, and he was ultimately arrested for a weapons charge. After Riley’s arrest, an officer searched Riley and seized his cell phone from his pants pocket. Cell phone examination.jpg The officer accessed information on the phone and observed the repeated use of a term associated with a street gang. Later, at the police station, a gang unit detective looked through the digital contents of the phone. The detective found photographs and videos connecting Riley to a gang and implicating Riley in a gang-related shooting.

Riley’s motion to suppress the evidence from his cell phone was denied. The cell phone evidence was used to convict Riley and was also used to enhance Riley’s sentence based on his gang membership. Riley appealed, and the case made its way to the United States Supreme Court. The Court held that police may not search information on cell phones without a search warrant.

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What does it mean when the law says an officer must have ‘probable cause’ to arrest a person for a DUI/OVI? Common sense tells us the evidence observed by the officer must lead to the conclusion that the person is probably under the influence. Common sense and case law tell us the officer must consider all of the evidence in making the arrest decision. A recent case in the U.S. Sixth Circuit Court of Appeals addresses this issue and implies that evidence of sobriety has little meaning in the probable cause determination.

The case of Kinlin v. Kline, decided last month, involves a lawsuit by motorist Michael Kinlin against Ohio State Highway Patrol trooper Shawn Kline. Trooper Kline observed Kinlin change lanes and move into a narrow space between two cars in the left lane. Trooper Kline stopped Kinlin, and Kinlin disagreed with Kline’s claim that the lane change was unsafe. Trooper Kline noticed the odor of alcohol and asked Kinlin how much alcohol he consumed that evening. Kinlin said he drank two beers.

Scales of justice half.jpgTrooper Kline had Kinlin get out of the car. Kinlin complied and walked with the trooper to the cruiser with no balance problems. Trooper Kline began instructing Kinlin with regard to a field sobriety test. Kinlin said in response, “I’m not doing a test. I just told you I had two beers; I’m not drunk”. Trooper Kline told Kinlin he was under arrest. Trooper Kline asked Kinlin two more times if he would take the field sobriety tests, and Kinlin declined. Trooper Kline began doing a pat-down of Kinlin, and Kinlin said he would do the field sobriety tests. Trooper Kline, however, arrested Kinlin and said, “at this point, we’re going to go off your test results”.

Going off the test results did not work out well for Trooper Kline. It turned out that Kinlin’s breath alcohol concentration was .012, well under Ohio’s legal limit of .08. Kinlin sued Trooper Kline, claiming Kline violated his Fourth Amendment right to be free from unreasonable searches and seizures. Kline responded by claiming he was immune from being sued: the arrest was reasonable because he had probable cause to believe Kinlin was operating a vehicle under the influence. The U.S. District Court agreed with Trooper Kline, and Kinlin appealed to the U.S. Sixth Circuit Court of Appeals.

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In most Ohio DUI/OVI cases, the evidence includes police officer testimony and police cruiser video. Officer testimony is sometimes not corroborated by the recording from the cruiser video. In such a situation, a judge or jury has to decide if they believe the officer or their own eyes. Such a situation arose in the recent case of State v. Jarosz, and the judges believed their eyes.

In Jarosz, the discrepancy between officer testimony and cruiser video involved the officer’s use of ‘pacing’ to determine the defendant’s speed. To measure a vehicle’s speed by pacing, an officer must follow the other vehicle at the same distance for a period of time. By doing so, and by knowing the speed of the cruiser, the officer can conclude the other vehicle is going the same speed as the cruiser. Speed limit sign.jpg

During a hearing on Mr. Jarosz’s motion to suppress evidence, the officer testified about pacing the defendant’s vehicle. The officer said he first did a visual estimate of the defendant’s speed, without pacing, and concluded the defendant was exceeding the 45 mph speed limit. As the vehicles entered a 40 mph zone, the officer paced the defendant’s vehicle and maintained the same distance for 12 seconds.

In his testimony, the officer acknowledged the importance of maintaining the same distance between the defendant’s vehicle and the cruiser. He also acknowledged that going faster than the defendant would make it impossible to get a good speed measurement. The officer testified he was “a hundred percent positive that [he] had a good speed pace on him and logged a speed pace of 48 miles per hour in a 40 zone”.
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The caller was anonymous, and there was little evidence corroborating the caller’s claim. He or she called 9-1-1 and reported she was driving southbound on Highway 1 and was just run off the road. The caller described a silver Ford F150 truck with a California license plate. It did not take long before officers spotted a silver F150 and pull it over based on the anonymous caller’s report. After stopping the truck, the officers ended up finding and seizing marijuana. The question is whether this stop was lawful.

Bill of rights.jpgThe question is being answered in Navarette v. California. The case actually involves two defendants, and the defendants are brothers. The brothers were both in the truck when the marijuana was seized, so both of them were charged with marijuana offenses. The Navarette case started in a California state court and made its way to the United States Supreme Court. The Supreme Court recently held oral arguments.

Longstanding precedent holds officers are able to make an investigative traffic stop if they have a reasonable suspicion that the vehicle’s occupants committed a crime. There is also precedent regarding when an anonymous tip can justify detaining a suspect. Generally, the tip must have ‘sufficient indicia of reliability’, which usually means it must be corroborated by independent observations by the officers. The leading Ohio decision on this topic is Maumee v. Weisner. In that case, the Ohio Supreme Court addressed whether the stop for a D.U.I./O.V.I. investigation was proper.

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A recent vehicular homicide case in Wisconsin triggers the question of whether Ohio’s implied consent law is constitutional. In that case, a former Lutheran bishop is accused of what Ohio calls Aggravated Vehicular Homicide; causing the death of another person by operating a vehicle under the influence. The bishop was told that he would lose his license if he did not consent to a blood test, so he submitted to the test. His attorney argued that the threat of a license suspension amounts to coercion, and that makes the implied consent law unconstitutional. In Ohio, this issue has been decided.

Blood draw.jpgOhio’s implied consent law says that anyone who operates a vehicle in the state of Ohio implicitly consents to take a blood/breath/urine test for alcohol and/or drugs if the driver is arrested for DUI / OVI. The arresting officer is required to advise the driver of the consequences of taking or refusing the chemical test. Like Wisconsin, one consequence of refusing the test in Ohio is suspension of the person’s driver’s license (called an ‘Administrative License Suspension‘ – ‘A.L.S.’). For a first refusal, the license suspension is one year. For repeated refusals, the license suspension increases, up to five years.

The constitutional issue involved is the driver’s right to due process of law. The fifth and fourteenth amendments to the Constitution say no person shall be “deprived of life, liberty, or property without due process of law”. People have a property interest in their driver’s licenses, so a license cannot be suspended without due process. Due process in this context means the driver must be given notice of the suspension and must also be given a hearing on the suspension at a meaningful time and in a meaningful manner.

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In a previous post, this blog questioned whether police should be able to draw blood against your will without a search warrant. At that time, oral arguments had recently been held in the case of Missouri v. McNeely. A few days ago, the United States Supreme Court issued a decision in the McNeely case. Based on that decision, the Constitutionality of the law for forced blood tests in Ohio O.V.I. cases is questionable.

In McNeely, the defendant was arrested for D.U.I. and taken to a hospital. When McNeely declined to give a blood sample, his blood was drawn without his consent and without a warrant. The trial judge suppressed the blood test, and the case was appealed through the Missouri state courts to the United States Supreme Court. The Court framed the issue as follows: “The question presented here is whether the natural metabolization of alcohol in the bloodstream presents a per se exigency that justifies an exception to the Fourth Amendment’s warrant requirement for nonconsensual blood testing in all drunk-driving cases.”

The Supreme Court analyzed the search and seizure issue. A blood draw is invasion of the suspect’s bodily integrity that implicates the most personal expectations of privacy. Blood draw.jpg A warrantless search of a person’s body is only reasonable if conducted pursuant to a warrant or a recognized exception to warrant requirement. One recognized exception to the warrant requirement is ‘exigent circumstances’, times when “there is a compelling need for official action and no time to secure a warrant”. One situation involving exigent circumstances is preventing imminent destruction of evidence. In drunk driving cases, the evidence is being destroyed because blood alcohol concentration decreases by .015% to .02% per hour once the alcohol is fully absorbed. The question is, therefore, whether that dissipation of evidence creates ‘exigent circumstances’.

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