Arrest Theorem For Ohio DUI/OVI Cases: FST ≠ PC

Fourth amendment law does not lend itself to mathematical formulas. Rather than using equations to decide Constitutional issues, courts look at the totality of the circumstances and make decisions on a case-by-case basis. This is particularly true when it comes to the issue of whether an officer had probable cause to justify an arrest. However, one theorem illustrated by a recent Ohio OVI case is this: clues on Field Sobriety Tests (FSTs) does not equal Probable Cause (PC).

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The case is State v. Kopp. An officer observed the rear license plate was not functioning on Kopp’s vehicle. The officer ran the vehicle’s license plate, which he could read even without the license plate light, and learned the owner of the vehicle had an expired driver license from the state of Ohio. The officer stopped the vehicle. Before stopping the vehicle, the officer had not observed any evidence the driver may be under the influence.

After stopping the vehicle, the officer learned the driver, Kopp, had a valid driver license from the state of Georgia. During the stop, the officer observed the odor of fresh marijuana, as well as the odor of alcohol, and Kopp admitted to smoking marijuana. The officer also noted Kopp’s eyes were very glassy and somewhat bloodshot. The officer asked Kopp to get out of the vehicle for field sobriety testing.

The officer administered the three field sobriety tests standardized by the National Highway Traffic Safety Administration (NHTSA). On the Horizontal Gaze Nystagmus (HGN) test, the officer observed two clues out of six possible clues. On the Walk and Turn (WAT) test, the officer observed three out of eight clues. On the One Leg Stand (OLS) test, the officer observed two out of four clues. The scoring of the standardized field sobriety tests gave mixed results, but the last two test results suggested Kopp likely had a breath alcohol concentration (BAC) of .08 or more.

The officer administered additional sobriety tests. On the Lack of Convergence (LOC) test, the officer observed Kopp’s right eye drifted outward rather than converging (crossing) when a pen was moved very close to the eyes. On the two remaining tests, Kopp was able to correctly recite the alphabet and count backward from 69 to 57.

Based on that evidence, the officer arrested Kopp and charged him with OVI. Kopp, through his attorney, filed a motion to suppress evidence, arguing the officer did not have probable cause to believe Kopp was operating a vehicle under the influence. The judge agreed and granted the motion. The prosecution appealed the judge’s decision to the Fifth District Court of Appeals.

The Court of appeals reviewed the totality of the circumstances. The court took into account the odors of raw marijuana and alcohol, Kopp’s admission of smoking marijuana, and the clues the officer observed during the field sobriety tests. The Court noted, however, that Kopp exhibited no impaired driving, spoke calmly/politely/intelligibly, exited his vehicle without incident, submitted to the field sobriety tests without incident and generally exhibited no visible signs of impairment. Based on the totality of the circumstances, the appellate court affirmed the trial court’s conclusion the officer did not have probable cause to believe Kopp was operating under the influence.

The Kopp decision is interesting because the court concluded the officer did not have probable cause, despite the fact the officer observed clues on the field sobriety tests. In other cases, appellate courts have given the impression that clues on field sobriety tests was “enough” for probable cause. The “enough” observation is inconsistent with the totality of the circumstances test and sounds more like an equation.

I’m glad equations are not a big part my chosen area of law. In college, I avoided math as much as possible: I earned five hours of math credit by taking a logical reasoning class. The Kopp decision is a good example of logical reasoning leading to the correct result.