Anyone who has been charged with an OVI / DUI in Ohio has had the pleasure of listening to an officer read several paragraphs from the back of a form provided by the Ohio BMV. This often droll recitation is required by Ohio’s implied consent law, which says that anyone who operates a vehicle in the state implicitly consents to takes a blood/breath/urine test for drugs and/or alcohol if arrested for OVI. An implied consent law similar to Ohio’s was recently found to be unconstitutional by the Georgia Supreme Court.
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).
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.
Suppose a police officer comes to your home tonight without a warrant and wants you to consent to a search of your residence. If you are like most people, you would say ‘no’: you would assert your Fourth Amendment right to be free from unreasonable searches and seizures. Now suppose the government makes it a crime for you to refuse to consent to the search. That’s what Ohio and several other states have done with DUI laws which criminalize refusing a breath/blood/urine test. Those laws are the subject of cases currently before the United States Supreme Court.
The cases are Birchfield v. North Dakota, Bernard v. Minnesota, and Beylund v. Levi. In those cases, state laws make it a criminal offense for a motorist arrested for driving under the influence to refuse to consent to a chemical test of the motorist’s blood, breath or urine. Motorists convicted of those laws appealed their convictions to the Supreme Courts of North Dakota and Minnesota, claiming the refusal laws are unconstitutional. In each case, the state supreme court upheld the constitutionality of the law. In each case, the defendant appealed to the United States Supreme Court. The United States Supreme Court held oral arguments for these cases on April 20, 2016.
Ohio has a law similar to the laws which are the subject of the Supreme Court cases. Ohio’s law (R.C. 4511.19[A]) makes it illegal to refuse a breath/blood/urine test for a person who is arrested for operating a vehicle under the influence (OVI) and has a prior OVI conviction within the last 20 years. The punishment for this offense includes a minimum mandatory jail sentence which is double the minimum mandatory jail sentence for OVI. Although Ohio’s law is slightly different –it has the added element of a prior conviction – it has the same unconstitutional flaw as the laws in North Dakota and Minnesota.
Ohio takes drivers’ licenses before a person is found guilty of DUI/OVI. If a person is arrested for DUI/OVI and tests over the limit, or refuses to test, that person’s license is suspended immediately. No judge reviews the circumstances beforehand to determine if the suspension should be imposed. Instead, the executive branch of the government takes the driver’s license automatically.
It’s called an Administrative License Suspension (ALS). The suspension is considered a ‘civil’ (not criminal) action, and it is imposed independent of the traffic ticket charging the person with OVI. Ohio’s administrative license suspension is similar to other states’, including Florida.
Florida’s administrative license suspension is currently the subject of a class action lawsuit which alleges the ALS is unconstitutional. The plaintiff seeks damages exceeding $50 million from the Florida Department of Highway Safety and Motor Vehicles, according to this report from Click Orlando. The plaintiff claims the failure to have a judicial officer review the propriety of the license suspension violates the Due Process clause of the 14th Amendment.
The Miranda warnings are well-known: “you have the right to remain silent….” What is not so well-known is when the Miranda warnings are required. According to Miranda v. Arizona, the warnings must be given when a suspect is questioned while ‘in custody’. If a suspect is in custody and the warnings are not given, statements made by the suspect cannot be used in the suspect’s trial.
In an OVI case, a suspect may tell an officer, “I had 13 beers, and I know I shouldn’t be driving”. If the suspect was in custody at the time of making that statement, the statement is never heard by the jury if the Miranda warnings are not given. For Ohio OVI cases, the question often is this: when is a person ‘in custody’ for purposes of Miranda?
This question was first addressed by the United States Supreme Court in Berkemer v. McCarty. In Berkemer, the defendant was stopped for a traffic violation and investigated for DUI. During the investigation, but before the arrest, the defendant made incriminating statements. The court held Miranda warnings are required for misdemeanor offenses if a suspect is questioned in custody. The court concluded a person is not in custody during a routine traffic stop, but treatment by the officer after the stop may render a person in custody.
An appellate case decided earlier this month illustrates how not to attack the constitutionality of a law. In the case of State v. Topolosky, the Tenth District Court of Appeals upheld Ohio’s DUI/OVI marijuana law. Coincidentally, just before the case was published, I wrote about this topic in this blog, and I spoke about this topic at two seminars. The defendant in Topolosky did essentially the opposite of what I suggested in the blog and presentations. The defendant used an argument destined to fail…with bad timing…without an expert witness.
The argument destined to fail was the argument that the law violates the defendant’s rights to due process and equal protection. This argument was destined to fail because, unless a suspect classification or fundamental right is involved, the law is judged using the ‘rational basis test’. With this test, the law will only be considered unconstitutional if the law has no rational relationship to a legitimate government interest.
When courts apply the rational basis test, it is incredibly rare for a law to be held unconstitutional. Using the rational basis test, another Ohio appellate court had already upheld the OVI marijuana ‘per se’ law in State v. Schulz. It is no surprise the Court of Appeals in Topolosky upheld the same law using the same rationale.
Issue 3 went up in smoke last week, so it’s still illegal to use marijuana in Ohio. It’s also illegal to operate a vehicle under the influence of marijuana or with a prohibited level of marijuana metabolite in one’s urine. The last article in this blog addressed the duration of marijuana’s effects and the duration of marijuana’s detectability. The conclusion was marijuana effects last for two hours to five hours, but marijuana metabolites are detectable in urine for up to five weeks. With that backdrop, this article discusses whether Ohio’s DUI/OVI marijuana laws are Constitutional.
The part of Ohio’s OVI law with the most significant Constitutional problem is the part which prohibits driving with marijuana metabolites in one’s urine. Ohio Revised Code section 4511.19(A)(1)(j)(viii)(II) says no person shall operate a vehicle with a concentration of at least thirty-five nanograms of marijuana metabolite per milliliter of the person’s urine. A person may be punished for violating this law even though the person’s ability to drive is not at all impaired.
One principle of Constitutional Law is a law should not punish a person based on the person’s status. A case illustrating this principle is Robinson v. California. In that case, the defendant was convicted of a California law which made it a crime to be addicted to a narcotic. The United States Supreme Court held the law was Unconstitutional: it violated the Eighth Amendment’s prohibition of ‘cruel and unusual punishment’. The court made two relevant observations. First, the status of ‘narcotic addiction’ could subject a defendant to repeated arrests. Second, a defendant could be punished for being an addict in the state of California even though he did not possess or consume a narcotic in that state.
It’s Independence Day. We’re celebrating our freedom, and we’re celebrating everything which makes the U.S.A. a great nation. One thing which makes this nation great is it’s ultimately governed by laws, not people. The framework for our laws is the Constitution, and the part of the Constitution which guarantees much of the freedom we’re celebrating today is the Bill Of Rights. The founders of this nation put their lives on the line for that freedom. Soldiers in our military protect the country and preserve our freedom from foreign oppression. But who is protecting our freedom from domestic oppression and preserving the liberties promised by the Bill Of Rights?
We enjoy our individual rights. We don’t want law enforcement breaking into our homes and seizing our possessions without a warrant: we want the freedom from unreasonable searches and seizures. We don’t want officers beating suspects until they confess: we want the freedom from self-incrimination. We don’t want the government summarily convicting people of crimes in a one-sided secret proceeding: we want a public trial by jury in which the process is fair.
To deter the government from violating Constitutional rights, we use the exclusionary rule. If officers break into a defendant’s house and seize the murder weapon without a warrant, testimony regarding that murder weapon is excluded from trial. If an officer beats a suspect until he confesses, that confession is excluded from trial. The immediate result may be the defendant whose rights were violated is acquitted of a crime he committed. The long-term result is law enforcement is generally deterred from violating citizens’ individual rights.
Suppose you are driving around Columbus on I-270 and an officer pulls you over for speeding. The officer gets out of his cruiser and walks up to your car. When the officer reaches your window, you see on his uniform he is from the Cincinnati Police Department. ‘That’s odd’, you think, ‘why is an officer from Cincinnati making a traffic stop in Columbus?’ Good question. A better question is this: does that traffic stop violate your Constitutional rights?
An officer from the Cincinnati Police Department does not have statutory authority to make a traffic stop for a minor misdemeanor in Columbus. According to Ohio statutory law, an officer only has such authority within the geographic boundaries of the political subdivision employing the officer. Therefore, the Cincinnati officer’s stop for a minor traffic offense in Columbus violates Ohio law. The question still remains whether the officer’s violation of the law is also a violation of the driver’s Constitutional rights.
The answer is ‘yes’, according to the Ohio Supreme Court. In a decision released a few days ago, the Court held a traffic stop for a minor misdemeanor offense made without statutory authority to do so violates Article I, Section 14 of the Ohio Constitution. While the stop may not violate the United States Constitution, it violates the Ohio Constitution.
Suppose an officer detains a person for violating a traffic law and it turns out the person really didn’t violate the law: the officer was simply mistaken about what the law says. Until recently, one would expect that any evidence obtained after the mistaken detention would be thrown out. In a recent case, however, the U.S. Supreme Court concluded any evidence obtained after the officer mistakenly detained the person is not excluded from trial, so long as the officer’s mistaken belief about the law was reasonable.
The case is Heien v. North Carolina. A police officer was watching traffic on a road in North Carolina when the officer observed Heien’s Ford Escort pass by. The car was being driven by Maynor Javier Vasquez, and Heien was a passenger. The driver was not driving recklessly, was not speeding, and was not violating the law in any way. The officer followed the car because the driver looked “very stiff and nervous”, then stopped the car for what the officer believed was a brake light violation. The car only had one working brake light, and the officer did not know that North Carolina law only requires one working brake light.
As the officer was issuing a warning ticket for the broken brake light, the officer became suspicious because the driver and passenger gave inconsistent answers to his questions regarding their destination. The officer asked Heien if the officer could search the vehicle. Heien consented. The officer found cocaine in the vehicle, and Heien was ultimately charged with and convicted of Attempted Drug Trafficking.
Heien’s conviction was reversed by the North Carolina Court of Appeals, but that decision was reversed by the North Carolina Supreme Court. Heien appealed to the United States Supreme Court. The U.S. Supreme Court accepted the case to answer this question: can an officer’s mistake of law give rise to the reasonable suspicion necessary to uphold the seizure under the Fourth Amendment?
The U.S. Supreme Court answers that question in the affirmative. In an opinion written by Chief Justice Roberts, the Court concludes that, if an officer stops a vehicle based on the officer’s mistake of law, and if that mistake is reasonable, the stop is justified under the Fourth Amendment. The Court reasons that people, including law enforcement officers, make mistakes, and an officer’s mistaken belief should only result in evidence being excluded if the officer’s mistaken belief was unreasonable. The Court supports this reasoning with citations to cases from the 1800s. Those cases did not involve the scope of the Fourth Amendment, and the Court’s opinion admits the cases are not on-point. The Court also compares officers’ mistakes of law with officers’ mistakes of fact. There are cases holding a detention may be justified even if an officer made a mistake of fact.