Articles Tagged with DUI/OVI probable cause

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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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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When authorities found Donna Wardell in her Chevrolet Impala, the car was upside-down, held in the air by part of the utility pole she just hit (see the story at app.com).  Medics pulled her out of the car through the windshield and rushed her to the hospital.  The medical team determined the crash was the result of a seizure caused by a brain tumor.  Wardell did not know about the tumor:  she learned of it in the hospital.  She later learned something else:  she was being charged with DWI because, when the medics removed Wardell from her car, they observed the odor of alcohol.

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The odor of alcohol.  Based on that evidence alone, a police officer charged Wardell with DWI (called OVI in Ohio).  It was the only evidence suggesting Wardell might be under the influence of alcohol.  Upon closer examination, however, the odor of alcohol really is not evidence she was under the influence.  At most, it’s evidence she consumed alcohol.  There is no way to tell from the odor how much alcohol she consumed and whether that alcohol was affecting her ability to drive.

Her ability to drive was not affected by alcohol, as there was essentially no alcohol in her blood.  A toxicology report showed her blood alcohol concentration was .001.  At that level, the alcohol did not cause the crash.  Another hospital record concluded the crash was the result of a medical accident:  a seizure caused by the tumor.

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