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.

For instance, the police officer puts handcuffs on the suspect and puts him in the back of the police car. The officer then asks the suspect certain questions about what went on that night, before reading the suspect his Miranda rights. The suspect answers in a way that incriminates him for DUI. When the defense attorney moves to suppress these statements because they were the result of a custodial interrogation prior to the reading of Miranda rights, the prosecutor will argue that the suspect had not yet been arrested.

Ohio’s Seventh District Court of Appeals has held that even when a suspect is handcuffed and in the back of the police car, he was not arrested. The case on this is State v. Quesenberry, 2001 Ohio App. LEXIS 2379 (May 24, 2001).

In another case, State v. Stanford, a police officer grabbed a defendant’s wrist and told him he was under arrest after observing him with a bottle of beer in public. The problem being that open container violations are minor misdemeanors for which one cannot be arrested. If the trial court found that this was the time of the arrest, then any evidence thereafter found must be suppressed since there was not probable cause to arrest the suspect.

But the police claimed and the prosecutor argued that the suspect was not arrested when the officer grabbed the suspect’s wrist and told him he was under arrest. Rather, they argued that the suspect was not under arrest until a few moments later when he tried to flee the police (flight from police is probable cause to arrest). A search of the suspect’s person incident to the arrest found 50 grams of crack cocaine, which would never have been found if he had only been issued a citation for the open container.

Ohio’s First District Court of Appeals reversed the trial court’s finding that the suspect was under arrest when the officer grabbed his left wrist and told him he was under arrest. The judges at the court of appeals cited to the testimony of the police officer who testified that the words “you are under arrest” do not mean that you are actually under arrest. If you don’t believe me, here is the quote from the case:

“Officer Howard testified that he only told Stafford that he was “under arrest” because “it’s the quickest way to let someone know that they are being temporarily detained, they do not have the right to leave.””

Amazingly, the Court warned police officers in the future not to tell people that they are under arrest until they mean to arrest them. If you don’t believe me, here is the quote:

“Though we do not believe that the phrase “you’re under arrest,” under the circumstances in this case, objectively evidenced an intent by the officer to arrest Stafford during the initial stop, we would admonish police officers, as a general rule, not to tell an individual that he or she is under arrest unless the officers intend to arrest the person at that time.”

Is it the role of the courts to give legal advice to the police? Do they ever give legal advice to the defendants? Is it proper for courts to issue such advisory opinions? Most law school students would answer all of these questions in the negative.

The case was State v. Stanford 2001 Ohio App. LEXIS 1377 (March 23, 2001) Hamilton App. No. C-000417, unreported (and it should be noted that the case caption has the defendant’s name wrong, the name of the Defendant actually being “Stafford”).

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