Court Disbelieves Officer And Concludes Arrest Was Unlawful In Ohio DUI/OVI Case

No problemwith lack of convergenceThe 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.

The case is State v. Simmons. The trooper clocked Simmons driving 57 mph in a 35 mph zone. The trooper did a U-turn, accelerated hard, and approached Simmons rapidly, without activating the cruiser lights or siren. In response, Simmons accelerated. The trooper chased Simmons at speeds exceeding 90 mph in a hilly area, and both crossed the center line or veered into the turn lane several times. The pursuit continued for over 30 seconds before the trooper activated the cruiser lights and siren.

Simmons pulled over safely in a school driveway and stopped. The trooper had Simmons sit in the cruiser. The trooper observed that Simmons’ movements and speech were normal, but the trooper questioned Simmons about using alcohol and drugs.   Simmons denied using alcohol but admitted he smoked marijuana a couple days before the incident.

The trooper administered several field sobriety tests. On the Horizontal Gaze Nystagmus test (involuntary jerking of eyes), which troopers always say is the best because “the eyes don’t lie”, there were no clues. However, the trooper observed Simmons’ eyes didn’t cross on the Lack of Convergence test (failure of eyes to cross).

The trooper concluded Simmons was under the influence and arrested him. Simmons took a urine test, and the result showed a marijuana metabolite ‘over the limit’. Simmons was charged with OVI, but the judge in the Franklin County Municipal Court found the trooper’s arrest was not justified. The prosecution appealed the judge’s decision to the Tenth District Court of Appeals.

The Court of Appeals, without saying it bluntly, found the trooper was not credible.

• The trooper violated traffic laws and created a safety hazard by pursuing Simmons in that manner without his lights and sirens.
• The trooper’s testimony about smelling burned marijuana from Simmons was inconsistent with the trooper’s statement on the cruiser video about the odor coming from the car and the passenger.
• There was “no competent evidence” to corroborate the trooper’s non-expert opinion that the Lack Of Convergence test indicated marijuana intoxication.
• The trooper’s claims about observing many clues on field sobriety tests was contradicted by the cruiser video. He ‘passed’ three of four tests and did not perform as badly on fourth test as trooper claimed

The decisions by the trial court and the court of appeals are refreshing. The judges actually examined the totality of the circumstances. This is refreshing because I have observed other judges focus only on evidence consistent with intoxication, ignore the evidence inconsistent with intoxication, and find “enough” evidence of intoxication to justify the arrest.

It is also satisfying to read the judges did not take the trooper’s word as gospel. While most law enforcement officers report their observations with candor, the trooper in this case did not. When writing his report, the trooper probably did not expect he would be cross-examined and his cruiser video would be played in court.

Many police reports make OVI cases sound strong for the prosecution. Good DUI defense lawyers don’t simply read the report and recommend that a client plead guilty. Instead, they dig into the case to uncover evidence which shows the true strength, or weakness, of the prosecution’s case.

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