Articles Tagged with Ohio DUI/OVI cases

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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It Seems Like A Good Defense On Television
Television and movies would have us believe ‘circumstantial evidence’ is a viable defense in court.  You can picture the dramatic scene in which a defense lawyer tells a prosecutor the prosecutor’s case is ‘merely circumstantial’.  In a real courtroom, however, there is no defense of ‘circumstantial evidence’.  In fact, Ohio OVI convictions are almost always based on circumstantial evidence, as demonstrated by a recent Ohio appellate case.

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The recent case is State v. Foos.  Foos crashed his car into a concreate barrier wall.  Police officers responded to the accident scene observed that Foos seemed very intoxicated.  The officers smelled the strong odor of alcohol coming from Foos, heard Foos talking with slurred speech, and saw Foos was wearing a wrist band which appeared to be from a bar.  Foos had difficulty balancing, refused to perform field sobriety tests, and declined to take a breath test.

Foos’s friends testified that Foos only had one beer while they played pool at the bar, and Foos did not drink any alcohol while they were at the strip club.  A jury found Foos guilty of OVI, and Foos appealed to the Ninth District Court of Appeals.

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Bad Facts Make Bad Law
If a police officer says a driver was under the influence of a drug, there is no need for testimony from an expert regarding whether the drug actually impairs driving. That is, essentially, the conclusion of the Ohio Supreme Court’s decision in State v. Richardson. There is a saying among lawyers: “bad facts make bad law”. The precedent created by this case may qualify as ‘bad law’, and the circumstances of the case definitely qualifiy as ‘bad facts’.

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These are the facts. The defendant rear-ended another car and had a child with him in his truck. He then nudged the other car repeatedly because he left his truck in gear. His speech was slurred, he slid out of the truck, he dropped all his cards on the ground, he singed his hair trying to light a cigarette, he ‘failed’ all the field sobriety tests, and he refused a blood test. The defendant told the officer he was on pain medication and took hydrocodone (at some undetermined time).

The defendant was charged with Child Endangering and felony OVI. This was his second felony OVI. That means, before this incident, he already had four OVI convictions in the last six years or six OVI convictions in the last 20 years. The defendant was convicted, and the case ultimately was heard by the Ohio Supreme Court.

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At some point, the exception becomes the rule.  To discourage police from violating individual rights, we developed the exclusionary rule.  If evidence is obtained as a result of an unreasonable search or seizure, or other Constitutional violation, the evidence is excluded from trial.  That’s the general rule.  Courts, however, have created exceptions to this rule.  One exception to the exclusionary rule was the subject of a recent case before the United States Supreme Court.  The outcome of that case could affect DUI/OVI cases in Ohio.

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The case is Utah v. Strieff.  Edward Strieff walked out of a residence in Salt Lake City and was stopped by a narcotics detective.  The detective had been conducting intermittent surveillance on the residence and suspected the occupants were dealing drugs there.  Strieff was not an occupant.  At the time he stopped Strieff, the detective had not seen Strieff engage in any activity resembling a drug deal, and the detective did not know how long Strieff had been in the residence.  Nevertheless the detective stopped Strieff and obtained his identification.

The detective ran a check on Strieff and learned there was a warrant for Strieff’s arrest for a minor traffic offense.  The detective arrested Strieff and conducted a search of Strieff’s person incident to the arrest.  During the search, the detective found methamphetamine in Strieff’s pocket.  Strieff was charged with drug possession, and he filed a motion to suppress the evidence based on the illegal stop.  The trial court overruled Strieff’s motion, and the case was ultimately appealed through the Utah state courts to the United States Supreme Court.

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The only presumption permitted in an Ohio DUI/OVI trial is the presumption the defendant is not guilty.  In a case alleging drugged driving, the prosecution must prove the defendant ingested a drug, and the prosecution must prove the defendant’s ability to drive was impaired.  Finally, as a recent case illustrates, the prosecution must prove causation:  the impaired driving ability was caused by ingesting the drug.

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The recent case is State v. Hammond.  A law enforcement officer stopped Hammond for speeding and observed Hammond’s pupils were constricted.  Based on his training in Advanced Roadside Impaired Driving Enforcement (ARIDE), the officer suspected Hammond may be under the influence.  The officer administered field sobriety tests, and those tests reportedly revealed “clues” of intoxication.  Hammond was 70 years old and walked with a cane.  The officer arrested Hammond for OVI and had Hammond submit a urine sample.  The officer charged Hammond with OVI, and Hammond entered a plea of Not Guilty.

At Hammond’s trial, the prosecution introduced the results of Hammond’s urine test.  The test showed the presence of N-Desmethyldiazepam, Oxazepam, and Temazepam.  The prosecution did not introduce expert testimony to describe the side effects of those drugs, but the officer testified in a conclusory fashion those drugs impaired Hammond’s ability to operate a vehicle.

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A judge in Columbus, Ohio found a man to be in violation of probation because the man was unable to urinate upon request.  The judge was aware the defendant, Mr. Hand, had medical problems which caused urinary difficulties and was taking medication designed to increase his urination.  Nevertheless, the judge concluded Mr. Hand’s inability to urinate constituted a “refusal” to submit to a urine test.  Individuals placed on probation for DUI/OVI in Ohio do not have this kind of experience, ordinarily.  But this was no ordinary case.

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Ordinarily, probation (also called “community control” in Ohio) is imposed by a judge for two reasons.  First, probation is imposed so somebody has the responsibility of monitoring the defendant’s compliance with court orders.  That somebody is the probation officer.  Second, probation is imposed to give the defendant incentive to comply with court orders.  If a probationer does not comply with court orders, judges can impose more restrictive probation conditions, lengthen the duration of probation, and impose jail time.

Before a judge can sentence a person for violating probation, the judge must hold a hearing.  At the hearing, the judge first determines if there is probable cause to believe the defendant violated probation.  The judge then determines whether the defendant did, in fact, violate probation.  If the judge concludes the defendant violated probation, the judge imposes a sentence:  more restrictive conditions, additional probation time, and/or jail time.

In the case of Mr. Hand, the judge ordered pretty common probation conditions:  Mr. Hand was ordered to complete a driver intervention program, complete any follow-up counseling recommended by that program, and complete 80 hours of community service.  He was also required to submit to alcohol/drug screens and not refuse any tests (for alcohol/drugs).

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Four months after Brittany was arrested and charged with OVI, the government charged her with a second count of OVI. In November, Brittany was arrested for OVI. On the day of her arrest, she submitted a urine sample, and she was charged with OVI. Three weeks later, the urine sample was analyzed, and the result was provided to the police department. In March, four months after the arrest, the police department charged Brittany with a second count of OVI based on the result of the urine test. Isn’t that a violation of her right to a speedy trial?

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That question was answered last week in State Of Ohio v. Brittany Wieland. This issue has been addressed by different Ohio courts of appeals but has never been directly addressed by the Ohio Supreme Court. The Ohio appellate courts have reached different conclusions because the issue is not simple. The situation involves two OVI charges and two types of speedy trial rights.

The two different OVI charges involved in this case are OVI ‘impaired’ and OVI ‘per se’. For the charge of OVI ‘impaired’, the government must prove the defendant’s ability to drive was impaired by alcohol. For the charge of OVI ‘per se’, the government must prove the concentration of alcohol in the defendant’s urine exceeded .109 (the equivalent of .08 in blood).

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At the last minute, without warning, the government convicted Demetrius of a more serious offense than with which he was originally charged. Demetrius received a ticket for OVI. The ticket informed him he was charged with a low-tier ‘per se’ OVI, which carries a minimum of three days in jail and does not involve mandatory restricted (yellow) license plates. Just before his case was finished, the court permitted the prosecution to change the charge to a high-tier ‘per se’ OVI, which carries a minimum of six days in jail and mandatory yellow license plates. Can the government to that?

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That question was answered in the recent case of State of Ohio v. Demetrius Rosemond, and the answer is not obvious. It involves interpreting Rule 7 of the Ohio Rules of Criminal Procedure. That Rule addresses amendment of complaints, and a traffic ticket is a type of complaint. The Rule says a complaint may be amended, “provided no change is made in the name or identity of the crime charged.” The question in the Rosemond case is whether amending the ticket from a low-tier OVI to a high-tier OVI changes the name or identity of the crime charged.

The Ohio Supreme Court ruled on a similar issue in State v. Campbell. In Campbell, the defendant was charged with violating Ohio Revised Code section 4511.19(A)(5). With that particular sub-section (the [5] at the end), the government alleged the defendant had a blood alcohol concentration over .08. The trial court permitted the prosecution to amend the ticket to 4511.19(A)(6). With that amended subsection (the [6] at the end), the government alleged the defendant had breath alcohol concentration over .08.

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