Results tagged “DUI OVI” from Columbus OVI/DUI Attorney Blog

April 19, 2014


Two days ago, the Ohio Supreme Court issued a decision clarifying how specific a motion to suppress must be for the defendant to receive an evidentiary hearing on the motion. In State v. Codeluppi (2014), the Court concluded: "[A] highly detailed pleading of the facts and law is not required to satisfy the Shindler notice requirements and to trigger the right to a hearing on the motion to suppress." This conclusion affirmed the Court's decision from a decade ago in State v. Shindler (1994). The Codeluppi decision hopefully will end uncertainty about the specificity required for motions to suppress in Ohio DUI/OVI cases.

Ohio has a system for drug/alcohol testing and field sobriety testing in DUI/OVI cases. First, government agencies develop methods for alcohol/drug testing and field sobriety testing. Second, those government agencies issue regulations and manuals to ensure the tests produce reliable results. Third, law enforcement is trained to implement the testing methods according to the regulations and manuals.State v Codeluppi page one.jpg

Ohio law has a framework for uniformly litigating issues regarding the admissibility of evidence in DUI/OVI cases. Rather than addressing the science behind alcohol/drug testing and field sobriety testing in every individual DUI/OVI case, the litigation addresses whether law enforcement complied with the regulations, the manuals, and the Constitution. The prosecution must prove drug/alcohol tests and field sobriety tests were administered in substantial compliance with the regulations and manuals, and the prosecution must also prove the detention and arrest of the defendant were lawful. If the prosecution does not prove these things, evidence is excluded from trial.


September 21, 2013


Standardized field sobriety tests (SFSTs) are administered in nearly every DUI/OVI case in Columbus and central Ohio. A previous post in this blog analyzed the standard for admitting the tests as evidence in court: the SFSTS must be administered in substantial compliance with the officers' training manual for the tests to be admissible. A recent case in an Ohio appellate court applied that standard and concluded the tests were not admissible in Middleburg Heights v. Gettings.

Walk and turn photo.jpgIn the Gettings case, a trooper stopped the defendant for weaving and observed the "usual trilogy" of signs that the defendant was under the influence: the odor of alcohol, slurred speech, and bloodshot/glassy eyes. The trooper administered a 'condensed' horizontal gaze nystagmus (follow the pen with your eyes) test, then had Gettings get out of the car. The trooper then administered all three standardized field sobriety tests, despite the defendant's knee problems. The trooper arrested the defendant, and the defendant blew over the high-test limit on a breath test. In court, the defendant filed a motion to suppress the field sobriety tests and also argued that the trooper did not have justification to arrest him. The judge overruled both motions.

The appellate court saw things differently. By filing the motion, the defendant put the burden on the prosecution to prove the field sobriety tests were administered in substantial compliance with the SFST manual issued by the National Highway Traffic Safety Administration (NHTSA). At the hearing on the defendant's motion, the prosecutor did not elicit any testimony from the trooper regarding the trooper's training in SFSTs, did not introduce the NHTSA manual as evidence, and did not even ask the trooper any details about how the tests were administered. The prosecutor simply asked the trooper if the tests were performed in compliance with the NHTSA manual, and the trooper said they were.


November 18, 2012


Previous posts in this blog discussed developments with the Intoxilyzer 8000 breath-testing machine. On May 30, 2011, the post summarized the Gerome case in Athens. In Gerome, the judge held the defendant is permitted to introduce evidence of factors affecting the breath test results. Another post reported the disappearing Intoxilyzer 8000 records maintained by the Ohio Department of Health. On June 11, 2011, this blog reported the judge's decision in the Reid case in Circleville. In Reid, the prosecution did not present expert witnesses, and the judge concluded the machine's results are not reliable enough to be considered as evidence. After the Reid decision, prosecutors have taken a couple different approaches with Intoxilyzer 8000 cases.

In the Bedford Municipal Court, the prosecutor used a novel approach. At the prosecutor's request, the two judges held a hearing with an "expert" witness for the prosecution but with no defense attorney even involved. When one side is not present, that's an ex parte hearing, which is generally prohibited in criminal law. With the "expert" witness from the Ohio Department of Health not being cross-examined by a d.u.i. defense attorney, guess what happened? The judges concluded that the Intoxilyzer 8000 is accurate and reliable! In addition to having the appearance of impropriety, the decision is not binding because it was held ex parte.

In the case of State v. Lancaster in the Marietta Municipal Court, the prosecutor is doing things in the way contemplated by the adversarial system. In response to the defense challenging the reliability of the 8000, the prosecutor provided reports of three expert witnesses, and the judge is holding hearings in which the defense can cross-examine the prosecution's expert witnesses. Like the Gerome case, the local defense bar obtained the assistance of two attorneys from the O.V.I. Committee for the Ohio Association of Criminal Defense Lawyers (Timothy Huey and me). On November 15, 2012, the first day of hearings was held, and I had the privilege of cross-examining the manager of engineering for CMI, the manufacturer of the 8000.

Two additional days of testimony have been scheduled for the State v. Lancaster case. In addition to the prosecution witnesses, the defense is going to call its own expert witnesses to discuss the 8000's reliability. When a decision is issued, which will be a few months, I'll report it here.