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.
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.
The first case, State v. Daniels, involves a traffic stop in Fairfield County. In that case, an Ohio State Highway Patrol trooper stopped a driver at around 2:30 in the morning for stopping past the stop bar at an intersection and turning into the incorrect lane after making a turn at that intersection. As the trooper approached the car, he overheard the driver on the phone asking someone to come pick up his car. The trooper also noticed the driver had red and bloodshot eyes. After running his information, the trooper determined the driver’s license was suspended. Based on all of this, the trooper ordered the driver out of the car and administered FSTs. The driver was ultimately charged with OVI.
The second case, Sate v. Macklin, also involves a traffic incident in Fairfield County. In this case, a Pickerington Police Officer noticed a woman standing by a car with heavy front-end damage in a parking lot driveway a little after 4:00am. He asked the driver what happened, and she said she was coming home from work, was very tired, and may have fallen asleep at the wheel. The officer noticed tire tracks coming through the grass from a nearby creek and thought the driver was very nonchalant for the apparent situation that appeared to have happened. The officer also noted the driver was wearing “bed clothes,” had occasionally slurred speech, and had droopy eyes with dilated pupils. Based on these observations, the officer had the driver perform FSTs and charged her with OVI.
Both cases were appealed to the Fifth District Court of Appeals, in part to determine if the officers had the requisite reasonable suspicion to detain the driver for SFTs. Both drivers were stopped late at night, both exhibited behavior the officers deemed unusual, both had droopy or bloodshot eyes, and both had no odor of alcohol. Given these facts, in which case do you think the officer had reasonable suspicion to justify administering FSTs?
The Fifth District found reasonable suspicion existed in the Macklin case, but not in the Daniels case. How can the same court examine such similar cases and reach a different conclusion in each?
The answer lies in the “Totality of the Circumstances”: the test used by Ohio courts to determine whether reasonable suspicion is present. Using this test, courts consider all the facts and the context in which they are presented from the perspective of a reasonably prudent officer. This test is applied on a case-by-case basis, so there isn’t a single, bright line set of criteria to determine whether reasonable suspicion exists.
In the Daniels case, the court found his eyes could have been red for any number of reasons, and he was asking someone to get his car because he knew the officer wouldn’t let him drive away with a suspended license. Accordingly, the officer did not have a justification to administer FSTs.
In the Macklin case, on the other hand, the court found the driver’s clothes didn’t match her story of coming from work. That, combined with her slurred speech and laisses-faire attitude about a seemingly serious accident gave the officer reasonable suspicion to believe she was under the influence, allowing him conduct FSTs.
These cases illustrate how courts can look at two seemingly similar cases and reach different conclusions by applying the “Totality of the Circumstances” test. Because the test is applied on a case-by case basis, a seemingly inconsequential fact, such as what a driver is wearing, or their attitude about an accident, can take on far greater importance when viewed under the totality of the circumstances. Someone wearing pajamas on their morning coffee run wouldn’t draw a second look. That same person, standing by a disabled vehicle at 4 am saying they were on their way home from work ends-up walking heel-to-toe and standing on one leg. DUI / OVI lawyers should closely examine the totality of the circumstances in their cases to determine if the officer’s decision to detain the client for FSTs was justified.