The credibility of a law enforcement officer makes a difference in court. Judges seem to presume officers are credible. Officers, however, can ruin their credibility with unprofessional conduct, uncorroborated claims, and unconfirmed clues. The trooper in a recent Franklin County case did just that, and it resulted in the court of appeals concluding the trooper’s arrest of the defendant was unlawful.
We all remember learning in school the Fourth Amendment is the one which requires police to get a warrant to search your house or arrest you. That bullet point is great for helping kids learn the basics of their Constitutional rights; but, in practice, Fourth Amendment law is far more complex and far less certain. The complexity and uncertainty is illustrated by two recent Ohio DUI / OVI cases in which the same court looks at two very similar cases and comes to completely opposite conclusions.
During a recent OVI jury trial, the judge and I disagreed about the function of standardized field sobriety tests (SFSTs). During a sidebar, I argued the tests do not measure driving impairment; they predict blood alcohol concentration (BAC). The judge’s opinion was SFSTs measure impairment of driving ability. The judge’s opinion prevailed, despite being wrong, because the judge’s opinion always prevails in the judge’s courtroom (unless and until an appellate court says otherwise). This particular judge is intelligent, well-intentioned, and better educated on DUI/OVI issues than most judges and lawyers. If this judge misunderstands the purpose of SFSTs, it’s a topic worth addressing.
This the week of July 4th. For some, that means celebrating our nation’s independence with burgers, beer and boats. As alcohol is often mixed with boating, people are prosecuted and punished for boating under the influence (BUI). But how do law enforcement officers determine if a person’s ability to operate a boat is impaired by alcohol?
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).
I thought they were all drunk: they were driving on the wrong side of the road. But they weren’t drunk, they were just driving in Scotland. And so was I. I drove on the left, sat on the right, and shifted with my left on the endless roundabouts and turns. I navigated all the sheep, stone walls, and cliffs as I drove from the English countryside to the Scottish highlands, so I consider my recent holiday a driving success. The trip prompted me to compare the drunk driving laws of Ohio to the ‘drink driving’ laws of Scotland.
Imagine you are driving home on a central Ohio freeway after a late dinner and you are pulled over by a police officer. The officer says you were stopped for failing to use your turn signal when you changed lanes. The officer announces he smells the odor of alcohol and asks if you have been drinking. You did have a glass of wine with dinner. The officer then asks you to get out of the car for some field sobriety tests to “make sure you’re okay to drive”. Under what circumstances is the officer justified in doing this?
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?!
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.
Justin’s buddy was arrested for O.V.I. (D.U.I.) and called Justin to pick him up at the police station. Being a good friend, Justin drove to the police station. When he arrived, Justin was greeted by an officer who noticed that Justin had glazed eyes, slurred speech, and an odor of alcohol. The officer had Justin get out of the car, and the officer administered field sobriety tests. The officer arrested Justin and charged him with O.V.I. Justin later appealed his O.V.I. conviction, claiming the officer did not have justification to administer field sobriety tests.
The court of appeals decided Justin’s case in September of 2011 (State v. Trimble). The court reviewed the law regarding this part of the O.V.I. arrest process, which essentially says that, to administer field sobriety tests, an officer must have a reasonable, articulable suspicion that the suspect is under the influence. The court then evaluated Justin’s situation using a list of factors from the 1998 case State v. Evans and concluded that the officer was justified in administering field sobriety tests to Justin due to the time of day, Justin’s glazed eyes, the odor of alcohol, and Justin’s slurred speech. Justin’s conviction was upheld.
Justin learned the hard way that it doesn’t take much evidence to justify the administration of field sobriety tests. What he probably didn’t know, which most people don’t, is that he could have refused to perform the field sobriety tests. At least Justin is a good friend: a friend picks you up from jail, but a good friend is in jail with you.