Recently in DUI/OVI Constitutional issues Category

June 30, 2014


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.


June 14, 2014


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.


February 22, 2014


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".


February 8, 2014


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.


December 7, 2013


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.


April 20, 2013


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'.


April 6, 2013


How are sanctions to be imposed for violations of Ohio's discovery rules? That question was the subject of a recent decision by the Ohio Supreme Court. In a previous post, this blog described the changes to the rules for discovery (exchanging evidence) in Ohio criminal and D.U.I./O.V.I. cases. In a case decided a couple weeks ago, the Ohio Supreme Court interpreted the new discovery rules for the first time.

The case is State v. Darmond. Darmond and his codefendant were charged with drug trafficking and drug possession after allegedly receiving shipped packages containing marijuana. Before the trial, the prosecution and defense engaged in reciprocal discovery. During the trial, an investigator testified, and it became clear the prosecution had not given the defense all the evidence that should have been provided. The agent had written seven reports, because there were seven packages delivered, but only two reports were provided to the defense. The other reports may or may not have contained information helpful to the defense. After hearing arguments from the prosecution and defense, the trial judge dismissed the case with prejudice (the case could not be re-filed). The Eighth District Court of Appeals affirmed the trial court's decision, concluding that the trial court did not abuse its discretion.


January 25, 2013


Trooper Mark Winder stopped Tyler McNeely for speeding and observed the usual trilogy of intoxication signs: odor of alcohol, bloodshot eyes, and slurred speech. Winder gave McNeely field sobriety tests and arrested him for driving while intoxicated. The trooper drove McNeely to a hospital and asked McNeely to give a blood sample. McNeely declined. Without obtaining or even seeking a warrant, the trooper had a lab technician take a blood sample from McNeely while McNeely was restrained. The blood sample was later analyzed, and it was determined that the concentration of alcohol in the blood was .154.

The trial court suppressed the results of the blood test, and the case made its way through the Missouri Court of Appeals and the Missouri Supreme Court to the United States Supreme Court. The question before the Supreme Court is: whether a law enforcement officer may obtain a nonconsensual and warrantless blood sample from a drunk driver under the exigent circumstances exception to the Fourth Amendment warrant requirement based upon the natural dissipation of alcohol in the bloodstream. The McNeely oral argument was held earlier this month and can be heard here.

1336409_syringe.jpg The prosecution in McNeely argues that involuntary warrantless blood tests are necessary to effectively enforce D.U.I. laws. The prosecution points out that alcohol in a suspect's blood dissipates with time, so the blood alcohol evidence is destroyed if time is taken to obtain a warrant. Due to those "exigent circumstances", the prosecution states, officers should be permitted to draw blood without a warrant.


July 7, 2012


The Confrontation Clause of the United States Constitution has been the subject of a series of modern cases decided by the United States Supreme Court. Last month, the Court issued its latest interpretation of a defendant's right to confront the witnesses against him. The new case, Williams v. Illinois, leads to Confrontation Clause confusion.

There were three cases that led up to Williams. The Crawford v. Washington case in 2004 concluded that "testimonial" statements are not admissible in a trial unless the defendant was able to cross-examine the person that made the statements. In Melendez-Diaz v. Massachusetts (2009), the Court held that a lab report identifying a substance as a drug is not admissible at trial without live testimony. The 2011 case of Bullcoming v. New Mexico clarified that the analyst who actually performed the test must testify at the trial, unless the analyst is unavailable and was previously cross-examined.

In last month's case, Williams v. Illinois, DNA evidence was found on the victim and sent to a private laboratory for analysis. DNA was also taken from the defendant and sent to a police laboratory for analysis. At trial, the forensic specialist from the police laboratory testified the DNA profile from the defendant matched the DNA profile produced by the private laboratory (the DNA found on the victim). The analyst who performed the test at the private laboratory did not testify. The trial court admitted this testimony over the objection of the defendant, and the defendant was found guilty. Both the Illinois Court of Appeals and the Illinois Supreme Court affirmed the conviction, concluding there was no Confrontation Clause violation. The case was appealed to the United States Supreme Court.

The United States Supreme Court affirmed the conviction but issued multiple opinions. Although five justices voted to affirm the conviction, not all five agreed as to why the testimony did not violate the Confrontation Clause. Five justices, including one that voted to affirm the conviction, disagreed with the reasoning given in the plurality opinion. Given this unusual result, it is difficult to distinguish a rule of law from the case.

The impact of the Williams decision on Ohio O.V.I. cases is unclear. In O.V.I. cases, prosecutors will sometimes introduce evidence regarding blood/breath/urine tests through witnesses that are not the person that performed all parts of the test. D.U.I. defense lawyers will object on Confrontation Clause grounds, and the outcome will be uncertain. As Justice Kagan said in the Williams case, "What comes out of four Justices' desire to limit Melendez-Diaz and Bullcoming in whatever way possible, combined with one Justice's one-justice view of those holdings is-to be frank-who knows what. Those decisions apparently no longer mean all that they say. Yet no one can tell in what way or to what extent they are altered because no proposed limitation commands the support of a majority".

June 3, 2012


After three weeks of trial and nine days of deliberation, the jury found John Edwards Not Guilty on one charge and could not reach a unanimous verdict on the other five charges involving campaign finance fraud. Similar to the O.J. Simpson trial, the verdict and the jurors have been the subject of controversy and criticism. What the critics should grasp, and don't seem to, is this: "not guilty" means "not proven"; it doesn't mean "innocent".

A cornerstone of our legal system is the idea that "it is better that ten guilty persons escape than that one innocent suffer" (known as "Blackstone's formulation"). The due process clauses of the Fifth and Fourteenth Amendments to the United States Constitution say no person shall "be deprived of life, liberty, or property, without due process of law". Due process of law, in criminal cases, means the government must prove allegations beyond a reasonable doubt. As Justice Brennan said in In Re Winship:

The requirement of proof beyond a reasonable doubt has this vital role in our criminal procedure for cogent reasons. The accused, during a criminal prosecution, has at stake interests of immense importance, both because of the possibility that he may lose his liberty upon conviction and because of the certainty that he would be stigmatized by the conviction. Accordingly, a society that values the good name and freedom of every individual should not condemn a man for commission of a crime when there is reasonable doubt about his guilt.

The requirement of proof beyond a reasonable doubt applies to D.U.I./O.V.I. cases. If a person is facing significant consequences and stigma upon conviction for an O.V.I., then the government must prove to the jurors beyond a reasonable doubt the person operated a vehicle under the influence. An arresting officer may charge a defendant with O.V.I. based on observations and evidence like field sobriety tests and chemical tests. To charge the defendant with O.V.I., the arresting officer only needs "probable cause" to believe the defendant was under the influence. It is then up to the jury to decide whether the evidence proves beyond a reasonable doubt the defendant was under the influence. If there is doubt, and the doubt is reasonable, then the verdict should be Not Guilty.

In the Edwards case, the jurors had doubt about whether Edwards committed the alleged crimes. Although their comments indicate they think he was guilty, the evidence did not convince them he committed a crime. While the jurors have been criticized for not finding Edwards guilty, the critics did not hear all of the evidence, and the jurors did. They did not find him "innocent" (as there is no "innocent" verdict), they found him "not guilty", and "not guilty" simply means "not proven".

May 26, 2012


On December 3, 2011, Randy Babbitt was the head of the United States Federal Aviation Administration (F.A.A.). Three days later, Babbitt was the former head of the F.A.A. In those three days, Babbitt was charged with a D.U.I. that led to his resignation.

According to the Washington Post, a Fairfax police officer stopped Babbitt for allegedly driving on the wrong side of the road. The officer administered a breath test with a result of .07, under the legal limit of .08. Babbitt was arrested and taken to a detention center where he took a second breath test with a result reportedly over .08. He was charged with D.U.I. (called O.V.I. in Ohio) and released. At Babbitt's trial, the judge reviewed the cruiser video and concluded that the officer did not have justification for making a traffic stop. As a result, the case was dismissed.

Randy Babbitt's case is a good example of why it is often helpful to contest D.U.I./O.V.I. charges. Cases that appear on the surface to be strong for the prosecution sometimes turn out to be not-so-strong when the D.U.I.defense attorney investigates the factual and legal issues involved in the case. For example, problems with administration of field sobriety tests or breath/blood/urine tests may weaken the prosecution's case. There may also be mistakes made in the stop and arrest process that lead to evidence being excluded, as in Babbitt's case.

In Babbitt's situation, the case was dismissed because the evidence showed he shouldn't have been stopped to begin with. Unfortunately for Babbitt, however, the dismissal of the case did not happened until long after the case was made public and Babbitt had already resigned. So much for the presumption of innocence.

March 12, 2012


Every television-watching American knows about Miranda v. Arizona, and most have the following misunderstanding about criminal law (including O.V.I./D.U.I. law): "The officer never issued Miranda warnings; doesn't that mean they have to dismiss my case?"
No. That's not what it means.

Here is what Miranda says:
To summarize, we hold that, when an individual is taken into custody or otherwise deprived of his freedom by the authorities in any significant way and is subjected to questioning, the privilege against self-incrimination is jeopardized. Procedural safeguards must be employed to protect the privilege, and unless other fully effective means are adopted to notify the person of his right of silence and to assure that the exercise of the right will be scrupulously honored, the following measures are required. He must be warned prior to any questioning that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that, if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires. Opportunity to exercise these rights must be afforded to him throughout the interrogation. After such warnings have been given, and such opportunity afforded him, the individual may knowingly and intelligently waive these rights and agree to answer questions or make a statement. But unless and until such warnings and waiver are demonstrated by the prosecution at trial, no evidence obtained as a result of interrogation can be used against him.

Here is what Miranda means: if you were questioned while in custody, and if the officer did not give Miranda warnings, statements you made cannot be used against you at trial. The officer's failure to give Miranda warnings, however, does not automatically make the entire case invalid (if only it were that easy...).

Although the rule in Miranda seems pretty clear, applying the rule has proven to be a little more complicated. Applying the rule in the context of O.V.I. (D.U.I.) stops will be the subject of a post when I have more time. Right now, I need to watch Grey's Anatomy so I can understand medical procedures.

February 27, 2012


As an O.V.I./D.U.I. attorney, the Constitutional issues I regularly deal with involve the Fourth Amendment (search and seizure), the Fifth Amendment (double jeopardy, self-incrimination, due process), and the Sixth Amendment (trial rights). O.V.I. cases, and this blog, typically do not include First Amendment topics. However, an Ohio court's ruling has peaked my interest.

A magistrate in a Hamilton County court ordered Mark Byron to post an apology to his wife on Facebook every day for 30 days. Byron and his wife were going through a divorce, and his wife accused him of verbally abusing her and threatening her. Although Byron was exonerated of criminal charges, a court issued a civil protection order that prohibited him from doing anything that would cause his wife to "suffer physical and/or mental abuse, harassment, annoyance, or bodily injury."

Byron was unhappy with what happened, so he posted the following on Facebook:

"...if you are an evil, vindictive woman who wants to ruin your husband's life and take your son's father away from him completely--all you need to do is say that you're scared of your husband or domestic partner...."

Although Byron had blocked his wife from viewing his Facebook page, she learned of the post. The post came to the attention of the magistrate, and the magistrate found Byron to be in contempt of court. The magistrate ordered Byron to serve 60 days in jail or post an apology (written by the magistrate) on Facebook every day for 30 days. The story, and the apology, are on the website for USA Today.

The magistrate's contempt finding raises some interesting issues. Byron made the comments to his "friends" on Facebook, knowing that his wife was not a "friend" and therefore could not see his posts. Do people not have the right to vent to friends?

The magistrate's apology order also raises questions. Does the freedom of speech guaranteed by the First Amendment also include the freedom not to speak? Can a Court order a person to speak (or post) against his will?

Ironically, the magistrate also ordered Mr. Byron to be friends with his wife (on Facebook). I suspect they will not be 'friends with benefits'.

December 18, 2011


William Kral's inability to hear made it very difficult for him to communicate with his attorney when he was charged with D.U.I. in the state of Washington. At his arraignment, he was assisted by an unqualified sign language interpreter that led him to believe the document he was signing was a continuance. The document was really a waiver of his right to a speedy trial. Six years later, Kral's conviction was finally overturned, as reported by The News Tribune.

When a defendant is charged with D.U.I. (called O.V.I. in Ohio), one of the rights the defendant has in the court process is the right to a speedy trial. The right to a speedy trial can only be waived if the waiver is made knowingly and intelligently. Kral argued on appeal that the waiver of his speedy trial rights was not made knowingly and intelligently because he didn't know he was waiving his rights.

Kral's ordeal lasted for six years. During that time, he served a nine-month sentence, including three months in an alcohol treatment program. He also lost his job and paid $4,600 in fines. Kral reported that his court-appointed attorneys ignored or mishandled his case. Kral's appeal was ultimately successful: the appellate court overturned the conviction and ordered the case back to the district court to be dismissed.

This case illustrates the significance of Constitutional rights. It also illustrates the importance of having a good D.U.I. lawyer to ensure those rights are protected. The reversal of Kral's conviction is a victory for the deaf and a victory for Constitutional rights.

November 13, 2011


Occasionally, evidence in Ohio O.V.I. (D.U.I.) cases comes from a blood sample taken at a hospital. When the blood sample is obtained in a hospital setting, issues arise regarding the admissibility of the blood test. One issue is whether the suspect's consent to giving the blood sample is valid. For the second time in a year, a court of appeals has concluded that a defendant's consent to a blood draw was not valid because it was not made knowingly and voluntarily.

The case in which the court of appeals reached this conclusion is State v.Rawnsley. In Rawnsley, the defendant was involved in a two-car accident and taken to the hospital. At the hospital, a police officer read to the defendant an Ohio BMV form that informed the defendant of the consequences of consenting to a blood test and refusing a blood test. Ohio's 'implied consent' law says there is an Administrative License Suspension for refusing the test or testing over the limit. The defendant consented to a blood test, and the result was presumably over the limit. The other driver involved in the accident was seriously injured, so the defendant was charged with Aggravated VehicularAssault.

The appeals court analyzed whether the defendant's consent to the blood test was valid. The court reasoned that, for the defendant to be subjected to an Administrative License Suspension, the defendant must be under arrest. As this defendant was not under arrest, she could not be subjected to an Administrative License Suspension for refusing the test. Because the officer erroneously told the defendant her license would be suspended for refusing the blood test, the defendant's consent to the blood draw was not made knowingly and voluntarily. As her consent was invalid, the blood test evidence was suppressed. The prosecution will not have to decide whether there is enough evidence to go forward with the charge of AggravatedVehicular Assault without the blood test evidence.

The officer was in a difficult position because he was following the typical protocol for O.V.I. cases, but there are some exceptions for unusual circumstances. The best practice for an officer in that position is to obtain a search warrant for the defendant's blood sample rather than relying on the defendant's consent. This case illustrates some of the complexities of Ohio O.V.I. law and the need for a skilled O.V.I. / D.U.I. lawyer.