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).
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.
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.
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.
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.
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.
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?
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?
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.