Get Your Motion to Preserve Evidence Filed Early

In Ohio, if the police destroy evidence that may be exculpatory (tending to prove the defendant’s innocence), this may be the basis for a dismissal of the case. In Arizona v. Youngblood (1988), 488 U.S. 51, 109 S.Ct. 333, 102 L.Ed.2d 281, the United States Supreme Court addressed the issue of whether a criminal defendant is denied due process of law by a state’s failure to preserve evidence. The court stated the following:

“The Due Process Clause of the Fourteenth Amendment, as interpreted in [Brady v. Maryland (1963), 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215], makes the good or bad faith of the State irrelevant when the State fails to disclose to the defendant material exculpatory evidence.”

But what is “material exculpatory evidence” and how do you prove it if the evidence was destroyed before your attorney got to see it?
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Sobriety Check Points

The Fourth Amendment to the Constitution of the United States protects individuals from unreasonable searches and seizures, and states that no such searches and seizures may take place except upon probable cause. Article I, Section 14 of the Ohio Constitution contains nearly identical language to the Fourth Amendment. The purpose of the Fourth Amendment and Article I, Section 14 of the Ohio Constitution is to protect us from arbitrary searches upon which the police simply stop us at random without any reasonable suspicion or probable cause.

But today, we have a court system which is bent upon tearing up our Fourth Amendment and Article I, Section 14 rights in the quest to put drunk drivers behind bars. One of the most flagrant violations of the Fourth Amendment and Article I, Section 14 rights which the courts have approved comes in the area of sobriety check points. These are roadblocks which the police erect in certain areas and stop all cars, or every nth (fill in the blank) car at random to check to see if the driver is drunk.
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Sufficient Evidence for a DUI OVI Conviction

Ohio Revised Code 4511.19 states that “(A)(1) No person shall operate any vehicle, … if, at the time of the operation, any of the following apply: (a) The person is under the influence of alcohol, a drug of abuse, or a combination of them.” This is one of the two DUI charges that most DUI suspects face. One charge concerns having some amount of alcohol, no matter how much or how little, so long as it appreciably impairs the suspect’s ability to drive. This is often called the “Impaired Charge”

The second charge concerns having .08 or above in blood alcohol content, and it makes no difference whether or not your ability to drive is appreciably impaired.

When dealing with an impaired charge, if there was no evidence of erratic driving, defense attorneys make much of this before the court. How can the state prove beyond a reasonable doubt that the suspect was impaired if there was no erratic driving?

Ohio’s Fifth District Court of Appeals recently considered a defendant’s argument that there was insufficient evidence to convict him of drunk driving. The Court of Appeals overruled this objection though. The Court cited tot he following facts:

The officer testified that at 1:51 a.m., he witnessed Appellant turn onto a road without using his turn signal. The offier testified that when he activated his overhead lights the Appellant did not stop, but continued a short distance to pull into a private driveway. The officer then testified that he followed Appellant and pulled in behind Appellant’s vehicle, while his lights were still activated. The officer then testified that Appellant got out of his car and began to walk towards the residence. The officer told the court that he had to instruct Appellant that he needed to come and talk with him. At that time the officer detected the odor of alcohol coming from Appellant and saw that Appellant’s eyes were bloodshot and glassy. Appellant admitted to Trooper Putnam that he had a few beers, the last one being a half-hour before the stop.

In addition to this evidence, the Appellant refused to submit to field sobriety tests. He also refused to submit to a breath test. The Supreme Court of Ohio has held that a defendant’s refusal to submit to a breath test is admissible and probative of intoxication at the time of the refusal. Westerville v. Cunningham (1968), 15 Ohio St.2d 121, 239 N.E.2d 40. Thus, in Ohio’s Fifth District Court of Appeals, there need be no evidence of erratic driving or poor motor skills to prove beyond a reasonable doubt that a suspect has consumed enough alcohol to impair his driving.

All you need is a minor traffic violation like a failure to use a turn signal, together with an 1) officer’s perception that the suspect is slow to note that he is being pulled over; 2) typical indicia of consumption of alcohol; 3) admission of drinking; and 4) refusal to test. The case on this is State v. Eckert, 2008 Ohio App. LEXIS 83 (January 8, 2008), Licking Co. App. No. 2007 AP 04 0029.

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Rule Against Enhancing DUI OVI Penalties with Prior Uncounseled Convictions

In a recent case before Ohio’s Ninth District Court of Appeals, an OVI DUI suspect was charged with a third offense within six years of operating a vehicle while intoxicated under Section 4511.19(A)(1) of the Ohio Revised Code. Under that statute, each offense carries an increasingly serious penalty including fines, license suspensions, and mandatory terms of incarceration. R.C. Section 4511.19(G)(1). The third offense within six years carries a mandatory sentence of 30 days in jail with a maximum possible term of one year of incarceration. R.C. Section 4511.19(G)(1)(c). In contrast, a second offense carries a mandatory sentence of ten days in jail with a maximum possible term of six months of incarceration. R.C. Section 4511.19(G)(1)(b).

In that case, the suspect argued that the State should not be permitted to use her 2004 conviction to enhance the penalty for her current charge because that conviction is constitutionally infirm. She bases this conclusion on her assertion that when she pleaded no contest to the first charge, she was without legal counsel and had not knowingly waived that right. The suspect did not attack her second conviction for operating a motor vehicle while intoxicated. Thus, the question before the Court was whether her current charge should be considered a second offense as opposed to a third offense for sentencing purposes.

Generally, the law does not permit a criminal defendant to attack a previous conviction in a subsequent case. State v. Brooke, 113 Ohio St. 3d 199, 2007 Ohio 1533, at P9, 863 N.E.2d 1024 (2007). There is an exception, however, “when the state proposes to use the past conviction to enhance the penalty of a later criminal offense.” Id. In that situation, a defendant may attack the constitutionality of a prior conviction if it was obtained in violation of the defendant’s Sixth Amendment right to counsel. Id. The Supreme Court of Ohio has held that an uncounseled conviction, obtained without a valid waiver of the Sixth Amendment right to counsel, is “constitutionally infirm” if the result was a sentence of incarceration. Id. at Paragraph 9 (citing State v. Brandon, 45 Ohio St. 3d 85, 86, 543 N.E.2d 501 (1989); Nichols v. United States, 511 U.S. 738, 114 S. Ct. 1921, 128 L. Ed. 2d 745 (1994)).
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Reasonable Suspicion for a Traffic Stop: Brake Light

There is a misconception among Ohio law enforcement officers that having a broken taillight is a traffic violation. They use this “violation” as an excuse to pull a driver over in the late night hours who is otherwise not driving erratically. From there, things go from bad to worse as the officer smells alcohol and notes other indicia of impairment, asks the driver to exit the vehicle and perform Field Sobriety Tests, thus establishing probable cause for arrest without a warrant for DUI.

But the problem is that the Fourth Amendment requires reasonable suspicion of criminal activity to pull a vehicle over in the first place. Absent such reasonable suspicion, all evidence gathered pursuant to the stop must be suppressed. There is case law in Ohio which stands for the proposition that having only one functioning taillight is legal.

Thus if, at the suppression hearing, your attorney gets the officer to testify that the only reason that he pulled you over was for the broken taillight, then it would be reversible error for the trial court not to suppress all evidence from the stop and onward, leaving the prosecutor with no evidence to place before a jury.
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Records Keeping Requirements for Breath Testing Devices

When the police take you back to the station after arresting you for DUI (now called OVI in Ohio), you will be asked to take a test to determine the amount of alcohol in your system. This test comes in three forms, blood, urine, or breath, and you don’t have a choice as to which one they ask you to take.

The most common test is a breath test. Ohio Revised Code 4511.19(D)(1) provides that the analysis of bodily substances must be conducted in accordance with methods approved by the Ohio Director of Health as codified in the Ohio Administrative Code.

Ohio Administrative Code Section 3701-53-04(A)(1) requires that breath testing machines be calibrated once every seven days. The machines are calibrated by pumping a mixture of air and ethyl alcohol from a bottle through the machine. If the results are within .005 of the target value listed on the bottle, then the machine passes the test. If the results are more than .005 off, then the machine is tested again using a different bottle. If it then reads within .005 then the machine passes. But if it reads over .005 again, then the machine must be serviced before it can be used again.

The police are required to keep calibration logs containing all calibration tests for the last three years at the testing site. Ohio Administrative Code Section 3701-53-01(A). One police agency failing to do this recently was the Genoa Township Police Department. Officer Craig Jones, a certified senior operator of the testing device testified in court that when the machine failed the test, the results of those calibrations were not recorded in the logs.

The Fifth District Court of Appeals held that this was a violation of Ohio Administrative Code Section 3701-53-01(A) since the code section required that all calibration results, successful and unsuccessful, must be recorded and kept for three years. The Court of Appeals reversed the trial court’s holding that the results of the test were admissible and remanded the matter back to the trial court for further proceedings.

The case on this is State v. Shokery, 2007 Ohio App. LEXIS 3357.

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The Demise of Homan and the Rise of Junk Science

In October of 2000, the Ohio Supreme Court ruled in State v. Homan that the battery of tests more commonly known as Standardized Field Sobriety Tests were inherently unreliable predictors of intoxication unless they were given in strict compliance with the NHTSA guidelines. As such, the Ohio Supreme Court ruled that the results of tests not conducted in strict compliance with the NHTSA guidelines must be supressed from the evidence in any case.

This was an extremely controversial ruling amongst police officers, prosecutors, and Mothers Against Drunk Drivers. But the Ohio Supreme Court wasn’t going out on much of a limb. The NHTSA’s own manual which sets up the three standardized field sobriety tests, the Horizontal Gaze Nystagmus Test, the Walk and Turn Test, and the One Leg Stand Test plainly states that any deviation, no matter how slight from the instructions in the manual compromises the integrity of the tests.

But the Ohio Legislature wasn’t going to sit back and allow the Ohio Supreme Court to determine what evidence it would and wouldn’t consider. They passed a law which said that standardized field sobriety testing done in substantial (rather than strict) compliance was admissible at trial.

Back in the old days, a judge would have snorted something about separation of powers and how legislatures routinely prove that any goddamned wallpaper hanger can be a legislator and found the law unconstitutional. But in today’s era of shy judges, much of the power of the judicial branch was simply handed over to the Legislature in the Ohio Supreme Court’s recent ruling in State of Ohio v. Bocsar.

In that case, the Ohio Supreme Court found that while courts of Ohio did have the power to fashion rules of evidence, that the rule from Homan that strict compliance with NHTSA guidelines was required was not a rule of evidence. Never have so many worked so hard to give up so much.

Just what basis the Legislature had for saying that substantial compliance with the NHTSA tests reliable when the NHTSA books themselves say that it doesn’t has never been revealed to us. But perhaps if the Legislature enacts a bill that says water runs up hill we should all start building hydroelectric plans on mountain tops.

Of course Mark Twain must be given the last word (or two). He said: “No man’s wallet is safe while the legislature is in session.” He also said that: “Figures don’t lie, but liars figure.”

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How an Ohio Lawyer Fights an Ohio DUI Charge

As an attorney licensed to practice law in Ohio, I often assist clients in fighting DUI (now called OVI) charges. My goal is to get as much of the evidence against my client suppressed as I can. If I leave the prosecutor with too little evidence, he may be unsure whether or not he can get a DUI conviction. If that is the case, he will offer a plea bargain that my client can live with.

Here is how I go about defending a DUI case:

The very first thing I analyze when looking at a DUI or OVI case is whether or not the police officer used a proper traffic ticket (an Ohio Uniform Traffic Ticket as required by the Traffic Rules) and whether or not the police wrote the charges properly on the ticket. Very rarely, the police make a mistake here, not often, but often enough to check.

The second thing I analyze when looking at the facts of a DUI case is whether or not there was reasonable suspicion that my client violated any law. Usually the client is pulled over for a minor traffic violation like failing to use a turn signal or speeding. Any violation of the traffic laws, no matter how de minimis, even expired tags, is sufficient to allow the police officer to pull the driver over. But not all police officers have a firm grasp of what the traffic laws entail. Without reasonable suspicion that my client violated the law, the police officer’s act of pulling my client over in the first place is a violation of his Constitutional rights, the remedy for which, is suppression of the evidence.

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The Timing of Arrests in DUI/OVI Cases in Ohio

When your arrest for a DUI occurs is an important factor in your case. Generally, the sooner you are arrested after your stop, the better. This is because, in the absence of a warrant, the police need probable cause to arrest you and search your body for traces of alcohol. The less time they have to do that, the less likely a judge will be to find that they had probable cause to arrest you and conduct their search. So in a way, all that time you spend by the side of the road trying to convince them not to arrest you is just giving them more probable cause to arrest you.

Another reason why an early DUI arrest favors the defendant is that once the person is in custody, no answers to questions will be admissible against him until he has been read his Miranda rights.There are situations where the prosecutor and the police officer do not want the suspect to be considered as arrested yet.

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