Articles Tagged with Ohio DUI/OVI cases

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.

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The Georgia Case
That recent case is Elliot v. Georgia. In that case, the Supreme Court of Georgia reviewed the state’s implied consent notice. Georgia’s notice is very similar to Ohio’s in form, with one major difference: Georgia’s includes a sentence stating “Your refusal to submit to the required testing may be offered into evidence against you at trial.” It was this sentence which led to the Georgia Supreme Court evaluating their implied consent law.

As part of their evaluation, the Court reviewed the history of case law in their state, as well as the evolution of their ten (yes, 10) different state constitutions. Based on this review, the Georgia Supreme Court held the provision allowing the prosecution to use an OVI defendant’s test refusal against them in court is unconstitutional. The Court ruled that using a defendant’s refusal as evidence against them violated the right against self-incrimination as provided by the Georgia State Constitution.

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The 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.

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No problem with Lack Of Convergence (LOC)

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).

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Just as Hollywood has produced some good movies in trilogies, the United States Supreme Court has produced some good case law in trilogies. The Court addressed the right to confront crime lab analysts with the trinity of Bullcoming, Melendez-Diaz and Williams. On the issue of the need for a warrant to draw blood from a DUI suspect, two-thirds of the triad have been completed: McNeely and Birchfield. The triumvirate is about to be consummated with Mitchell v. Wisconsin.

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The Fourth Amendment protects people from unreasonable searches and seizures. The general rule is, for a search to be reasonable, there must be a search warrant issued by a judicial officer. There are many exceptions to that general rule. The question addressed by this tripod of cases is this: when is the government permitted to seize a DUI suspect’s bodily substances without a search warrant?

 

McNeely and Birchfield
One search warrant exception was analyzed in the first episode of this case law triumvirate: Missouri v. McNeely. McNeely dealt with the exception for searches based on ‘exigent circumstances’: when there is a compelling need for the search and not enough time to obtain a search warrant. The prosecution claimed DUI cases always involve exigent circumstances because the suspect’s blood alcohol concentration decreases with time. The Court concluded the dissipation of alcohol in the bloodstream does not necessarily create exigent circumstances, so a warrant is generally necessary to obtain a DUI suspect’s blood.

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We all remember learning in school the Fourth Amendment is the one which requires police to get a warrant to search your house or arrest you. That bullet point is great for helping kids learn the basics of their Constitutional rights; but, in practice, Fourth Amendment law is far more complex and far less certain. The complexity and uncertainty is illustrated by two recent Ohio DUI / OVI cases in which the same court looks at two very similar cases and comes to completely opposite conclusions.

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Before we get to the cases, we need to lay some ground work. Ohio courts have long held that a driver is seized for Fourth Amendment purposes when an officer asks the driver to perform Field Sobriety Tests (FSTs). Normally, an officer must have probable cause to seize a person in the form of an arrest. However, detaining a driver for FSTs is a lesser type of seizure and therefore is subject to a lesser standard than probable cause: reasonable suspicion. To detain a driver for FSTs, an officer must have a reasonable suspicion the driver is under the influence.

This raises an interesting question: When does a police officer have the required reasonable suspicion to order you out of your vehicle and request that you complete FSTs? This is precisely the question the Fifth District Court of Appeals answered when deciding two recent cases.

 

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The last post in this blog described how crime lab reports are used in Ohio DUI / OVI cases. In a nutshell: a lab technician issues a report identifying the quantity of alcohol or drugs in a person’s blood or urine, and that report is given to the prosecutor. Ohio legislation requires the prosecutor to provide the report to the defense attorney. Ohio legislation, however, is not the only law impacting the use of these reports. The Constitutions of Ohio and the United States also provide limitations on the use of crime lab reports in Ohio DUI / OVI cases.

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Defendants’ Confrontation Rights
In a criminal prosecution, defendants have the right to confront the witnesses against them. This right is guaranteed by the Sixth Amendment to the United States Constitution and Article I, Section 10 of the Ohio Constitution. Confrontation rights clearly apply to statements a witness makes during a trial:  the defendant cross-examines that witness at the trial. But what about statements made by a witness before the trial?

The United States Supreme Court addressed this question in Crawford v. Washington (2004). In this case, the Court held confrontation rights apply to out-of-court statements which are “testimonial” in nature. A statement is “testimonial” if an objective person would reasonably believe the statement would be available for use at a later trial. For example, if a person makes a report to the police, that person’s statements to the police would be considered “testimonial”. According to Crawford, testimonial statements cannot be used in a criminal trial unless the accused has the opportunity to cross-examine the person who made the testimonial statement.

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Most police officers probably do not go to work hoping to witness a suspect provide a urine sample. It’s likely not one of those things they go home and share with their family and friends. But it’s one of those things Ohio law requires in OVI cases. If a suspect is arrested and asked to provide a urine sample, an Ohio Department of Health regulation states, “The collection of the urine specimen must be witnessed”. The precise meaning of “witnessed” was the subject of a recent case in an Ohio court of appeals.

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The case is State v. Woltz. The defendant, Woltz, was arrested for OVI and taken to a police station. At the station, Woltz was asked to submit to a urine test, and she consented. The defendant was a female, and the arresting officer was a male. Accordingly, the officer asked a female dispatcher to witness the collection of the urine specimen. The urine specimen was given to the officer and sent to a crime lab. The crime lab analyzed the urine specimen and determined it contained marijuana, cocaine, and MDMA. Woltz was charged with OVI.

The defendant filed a motion to suppress the urine test. At the motion hearing, the female dispatcher did not testify. The officer testified that Woltz and the female dispatcher went into the women’s restroom with an empty vial and came out with a vial containing what appeared to be urine. The judge granted the motion to suppress because, without the testimony of the female dispatcher, the prosecution did not prove the urine sample was witnessed and authenticated. The prosecution appealed the judge’s ruling to the court of appeals.

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Jamie was driving down the highway with her boyfriend when a police officer stopped Jamie for speeding. It turned out Jamie did not have a driver license, and there was an active warrant for her arrest. The officer put Jamie in the back of his cruiser and placed her under arrest.

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Jamie’s purse was still in the car with her boyfriend, and her boyfriend owned the car. The officer decided to retrieve Jamie’s purse from the car and search it. The officer found drugs and drug paraphernalia in the purse, and Jamie was charged with crimes for possessing those items. In this case, State v. Banks-Harvey, the Ohio Supreme Court had to decide whether the officer’s search of Jamie’s purse violated Jamie’s right against unreasonable searches and seizures.

Both the federal Constitution and the Ohio Constitution protect us from unreasonable searches and seizures. A search conducted without a search warrant, like this one, is presumed to be unreasonable, unless it fits within a recognized exception to the search warrant requirement. In this case, the prosecution argued the search was justified as an inventory search.

 

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When a machine is given the power to convict a person of a crime, we should be absolutely certain the machine is working properly. In Ohio, machines are used to measure the concentration of alcohol in the breath of drivers. A driver who operates a vehicle with a breath alcohol concentration of .080 or more is guilty of OVI, even if that person’s ability to drive was not impaired by the alcohol. As breath-testing machines have that much power, the accuracy and precision of the machines is critical, so they are subjected to a weekly instrument check. A recent case by an Ohio appellate court downplays the importance of those weekly instrument checks.

The case is State v. Hicks. In that case, Hicks was arrested for OVI and taken to a police station for a breath test. The result of the breath test was over .080, so Hicks was charged with OVI ‘per se’. The defense lawyer filed a motion to suppress the breath test, and the judge held a hearing on that motion.

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Breath Testing Machines Must ‘Pass The Test’ Each Week
For a breath test result to be admissible as evidence, the prosecution must prove, among other things, at least two critical facts: (1) the machine was working properly at the time of the defendant’s test; and (2) the machine was maintained in substantial compliance with the regulations in the Ohio Administrative Code (OAC).

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The reasonable person. Courts make many decisions using the test of what ‘a reasonable person’ would do/think/feel under certain circumstances. Older cases used the ‘reasonable man’ standard, but newer cased have modernized the test with gender neutrality. In the recent case of Cleveland v. Oles, the Ohio Supreme Court concluded a reasonable person stopped by a police officer and placed in a cruiser would not necessarily believe he or she is ‘in custody’, so Miranda warnings are not required.

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To properly understand the Oles decision, one must first understand the Miranda warnings. Everyone seems to be familiar with the warnings from movies and television (iTunes and Netflix for those born after 1999). Few people, however, seem to understand their origin, development and interpretation.

The United States Constitution and the Ohio Constitution both protect our right against self-incrimination. The the Fifth and Fourteenth Amendments to the United States Constitution and Article I, Section 10 of the Ohio Constitution contain essentially the same language: ‘no person ‘shall be compelled in any criminal case to be a witness against himself’.

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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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