Articles Posted in DUI/OVI Constitutional issues

The last post in this blog described how crime lab reports are used in Ohio DUI / OVI cases. In a nutshell: a lab technician issues a report identifying the quantity of alcohol or drugs in a person’s blood or urine, and that report is given to the prosecutor. Ohio legislation requires the prosecutor to provide the report to the defense attorney. Ohio legislation, however, is not the only law impacting the use of these reports. The Constitutions of Ohio and the United States also provide limitations on the use of crime lab reports in Ohio DUI / OVI cases.

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Defendants’ Confrontation Rights
In a criminal prosecution, defendants have the right to confront the witnesses against them. This right is guaranteed by the Sixth Amendment to the United States Constitution and Article I, Section 10 of the Ohio Constitution. Confrontation rights clearly apply to statements a witness makes during a trial:  the defendant cross-examines that witness at the trial. But what about statements made by a witness before the trial?

The United States Supreme Court addressed this question in Crawford v. Washington (2004). In this case, the Court held confrontation rights apply to out-of-court statements which are “testimonial” in nature. A statement is “testimonial” if an objective person would reasonably believe the statement would be available for use at a later trial. For example, if a person makes a report to the police, that person’s statements to the police would be considered “testimonial”. According to Crawford, testimonial statements cannot be used in a criminal trial unless the accused has the opportunity to cross-examine the person who made the testimonial statement.

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Jamie was driving down the highway with her boyfriend when a police officer stopped Jamie for speeding. It turned out Jamie did not have a driver license, and there was an active warrant for her arrest. The officer put Jamie in the back of his cruiser and placed her under arrest.

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Jamie’s purse was still in the car with her boyfriend, and her boyfriend owned the car. The officer decided to retrieve Jamie’s purse from the car and search it. The officer found drugs and drug paraphernalia in the purse, and Jamie was charged with crimes for possessing those items. In this case, State v. Banks-Harvey, the Ohio Supreme Court had to decide whether the officer’s search of Jamie’s purse violated Jamie’s right against unreasonable searches and seizures.

Both the federal Constitution and the Ohio Constitution protect us from unreasonable searches and seizures. A search conducted without a search warrant, like this one, is presumed to be unreasonable, unless it fits within a recognized exception to the search warrant requirement. In this case, the prosecution argued the search was justified as an inventory search.

 

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The reasonable person. Courts make many decisions using the test of what ‘a reasonable person’ would do/think/feel under certain circumstances. Older cases used the ‘reasonable man’ standard, but newer cased have modernized the test with gender neutrality. In the recent case of Cleveland v. Oles, the Ohio Supreme Court concluded a reasonable person stopped by a police officer and placed in a cruiser would not necessarily believe he or she is ‘in custody’, so Miranda warnings are not required.

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To properly understand the Oles decision, one must first understand the Miranda warnings. Everyone seems to be familiar with the warnings from movies and television (iTunes and Netflix for those born after 1999). Few people, however, seem to understand their origin, development and interpretation.

The United States Constitution and the Ohio Constitution both protect our right against self-incrimination. The the Fifth and Fourteenth Amendments to the United States Constitution and Article I, Section 10 of the Ohio Constitution contain essentially the same language: ‘no person ‘shall be compelled in any criminal case to be a witness against himself’.

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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.

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The last entry in this blog discussed the movement to decrease distracted driving in the United States.  Using cell phones while driving appears to be increasingly problematic.  In response, states are criminalizing the behavior, and groups like the Partnership For Distraction-Free Driving and the Distracted Driving Project are mounting campaigns which encourage drivers to not multi-task while driving.  Another idea to combat distracted driving is use of the ‘Textalyzer’.

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What Is A Textalyzer?
The Textalyzer is computer program developed by Cellebrite.  Cellebrite sells software which enables investigators to unlock digital evidence from cell phones and other devices.  The Textalyzer is a relatively lean application which analyzes cells phone and provides reports regarding how and when the phones were used.

The Textalyzer could be used in various traffic law enforcement scenarios.  For example, it may be used if an officer is dispatched to an accident scene, makes a traffic stop, or responds to a report of a reckless driver.  In any of those situations, the officer could obtain the cell phone(s) of the driver(s) involved.  The officer would then run a cable from the driver’s phone to the officer’s laptop.  The Textalyzer program on the officer’s laptop would then examine the cell phone on-the-spot and report the findings to the officer.

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There are few instances when the government can take our property without first holding a hearing.  An Ohio Administrative License Suspension (A.L.S.) is one of those instances.  If a driver refuses a chemical test or tests ‘over the limit’, an officer takes the driver’s license on-the-spot.  Accordingly, to protect drivers’ rights to due process of law, Ohio has rules which must be followed for an A.L.S to be imposed.  A recent A.L.S. case in an Ohio Court of Appeals demonstrates what happens when the rules are not followed.

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There Are Rules For Imposing License Suspensions
The case is Toledo v. Ferguson.  Ferguson was stopped and given field sobriety tests.  The police officer charged Ferguson with OVI and imposed an A.L.S.  For the A.L.S., the officer completed a BMV 2255 report and sent a copy to the court.  However, the report was sent to the court six days after the arrest, and Ohio Revised Code section 4511.192(E) requires that the report be sent “as soon as possible, but not later than 48 hours after the arrest.”  Ferguson’s lawyer filed an appeal of the A.L.S. on the ground the BMV 2255 report was not timely filed.  The trial court refused to terminate the A.L.S., so Ferguson appealed to the Sixth District Court of Appeals.

Government Claims There Is No Remedy For Violating Rules
The prosecution argued the officer’s violation of the 48-hour requirement is not a ground for terminating the A.L.S.  Ohio Revised Code section 4511.197 establishes the parameters for A.L.S. appeals.  That section establishes four bases for appealing the A.L.S.  In Ferguson, the prosecution argued that, because the 48-hour rule is not one of those four bases, violation of the 48-hour rule cannot result in termination of the A.L.S.  The trial court agreed with the prosecution.

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In Ohio, and throughout the United States, we have a Constitutional right to be free from unreasonable searches and seizures.  In Ohio OVI cases, that means an officer can only arrest a suspect if the officer has probable cause to believe the suspect operated a vehicle under the influence of alcohol and/or drugs.  In the recent case of State v. Bracken, the Court of Appeals concluded the arrest was not justified.

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The Officer Reportedly Observed Signs Of Intoxication
In the early morning hours, a police officer stopped Cody Bracken for driving 61 mph in a 45 mph zone.  The officer noticed a moderate odor of alcohol coming from Cody’s vehicle.  The officer also noticed Cody’s eyes were bloodshot and glassy, and his face was flushed.  The officer asked Cody about drinking alcohol, and Cody said he drank two beers.

Based on the officer’s observations, he administered field sobriety tests.  On the Horizontal Gaze Nystagmus (HGN) test, the officer reportedly observed six clues out of six possible clues.  On the Walk And Turn (WAT) test, the officer allegedly observed five out of eight possible clues.  On the One Leg Stand (OLS) test, the officer purportedly observed three of four possible clues.  On the partial alphabet test, Cody skipped a letter.  The officer arrested Cody and charged him with OVI ‘impaired’ in the Franklin County Municipal Court.

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The last entry in this blog discussed lesson number one for appealing an Ohio Administrative License Suspension (A.L.S.).  The lesson came from a recent appellate case.  That lesson was for defense lawyers, and it was simple:  file the appeal on time.  This entry discusses lesson number two, which also comes from a recent appellate case.  This lesson is for courts, and it is also simple:  follow the law.

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The government cannot take property without due process of law.  Due process of law includes an opportunity to be heard (a hearing) at a meaningful time and in a meaningful manner.  With an A.L.S., the executive branch of government takes property from an individual by suspending the individual’s driver’s license.  Therefore, the individual is entitled to a meaningful hearing at meaningful time.  The most meaningful time for the hearing would be before the license suspension is imposed.  However, the Ohio Supreme Court held the A.L.S., with a post-suspension hearing, is not unconstitutional.

What keeps the A.L.S. from being unconstitutional is mainly the procedures found in Ohio Revised Code (O.R.C.) section 4511.192.  That statute includes the following requirements:

•    The officer must advise the individual of the consequences of taking or refusing a chemical test, using a form (BMV form 2255).
•    The officer’s advice must be witnessed, and the witness must sign the form.
•    The officer must write on the form the officer’s reasonable grounds to believe the individual was under the influence.
•    The officer must notify the individual of the suspension and the individual’s right to appeal the suspension.
•    The officer must sign the form, and the form must be sworn.
•    The officer must give a sworn copy of the form to the individual.
•    The officer must send copies of the form to the court and the BMV within 48 hours of the individual’s arrest.

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At some point, the exception becomes the rule.  To discourage police from violating individual rights, we developed the exclusionary rule.  If evidence is obtained as a result of an unreasonable search or seizure, or other Constitutional violation, the evidence is excluded from trial.  That’s the general rule.  Courts, however, have created exceptions to this rule.  One exception to the exclusionary rule was the subject of a recent case before the United States Supreme Court.  The outcome of that case could affect DUI/OVI cases in Ohio.

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The case is Utah v. Strieff.  Edward Strieff walked out of a residence in Salt Lake City and was stopped by a narcotics detective.  The detective had been conducting intermittent surveillance on the residence and suspected the occupants were dealing drugs there.  Strieff was not an occupant.  At the time he stopped Strieff, the detective had not seen Strieff engage in any activity resembling a drug deal, and the detective did not know how long Strieff had been in the residence.  Nevertheless the detective stopped Strieff and obtained his identification.

The detective ran a check on Strieff and learned there was a warrant for Strieff’s arrest for a minor traffic offense.  The detective arrested Strieff and conducted a search of Strieff’s person incident to the arrest.  During the search, the detective found methamphetamine in Strieff’s pocket.  Strieff was charged with drug possession, and he filed a motion to suppress the evidence based on the illegal stop.  The trial court overruled Strieff’s motion, and the case was ultimately appealed through the Utah state courts to the United States Supreme Court.

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Last week, the United States Supreme Court released a decision in a trio of cases involving DUI refusal laws.  A previous article in this blog gives a preview of the cases.  To decide the outcomes of those cases, the court analyzes whether search warrants are required before law enforcement officers can administer breath tests and blood tests.  Based on that analysis, the Court decides whether states can make it illegal to refuse chemical tests in DUI cases.  The Court’s decision will impact Ohio DUI/OVI cases.

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After considering 13 cases involving criminal refusal laws, the Court chose these three cases:  Beylund v. Levi, Bernard v. Minnesota, and Birchfield v. North Dakota.  These three cases were apparently chosen because they have three varying scenarios.  Beylund claimed his consent to a blood test was coerced because he was told he would be punished for refusing the test.  Bernard challenged his conviction for refusing a breath test.  Birchfield argued his conviction for refusing a blood test was unconstitutional.  The Court issued one opinion for all three cases under the caption of Birchfield v. North Dakota.

The Birchfield opinion analyzes the Fourth Amendment issues.  The Court confirms that both breath tests and blood tests are ‘searches’ within the meaning of the Fourth Amendment.  Fourth Amendment law presumes a warrantless search is unreasonable.  Accordingly, for a law enforcement officer to administer a blood test or a breath test, there must be a search warrant or a recognized exception to the search warrant requirement.

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