Reasonable Suspicion and Tipsters

The Fourth Amendment to the United States Constitution requires that before the police can stop a motorist there must be reasonable suspicion that a crime has been committed. Usually this reasonable suspicion arises out of the police officer’s observations of the motorist’s driving. An investigative stop of a motorist does not violate a suspect’s constitutional rights if the officer has a reasonable suspicion that the individual is engaged in criminal activity. Terry v. Ohio (1968), 392 U.S. 1 at 22.

“To justify a particular intrusion, the officer must demonstrate ‘specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.’” Maumee v. Weisner (1999), 87 Ohio St.3d at 299. Evaluating the facts and inferences requires the court to consider the totality of the surrounding circumstances. State v. Freeman (1980), 64 Ohio St.2d 291 paragraph one of syllabus.

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The Speedy Trial Act and DUI/OVI charges

The Sixth Amendment to the United States Constitution requires that a defendant charged with a crime like DUI/OVI be brought to trial in an expeditious fashion. However, it does not spell out any exact deadlines. The states are free to pass laws which give citizens more protections, but cannot pass laws that give citizens less protections than the minimum afforded by the U.S. Constitution. In Ohio, Ohio Revised Code Section 2945.71 is Ohio’s Speedy Trial Act. It was passed back in 1974 and gives more protections to Ohio citizens than the Sixth Amendment. R.C. 2945.71(B)(2) provides in pertinent part:

“…[A] person against whom a charge of misdemeanor, other than a minor misdemeanor, is pending in a court of record, shall be brought to trial as follows:… Within ninety days after the person’s arrest or the service of summons, if the offense charged is a misdemeanor of the first or second degree….”

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Junk Science and Challenging the Accuracy of the Testing Machine

In Ohio, it has been argued that junk science is used to determine guilt or innocence in DUI/OVI cases. The only answer to this argument that the prosecutors and the courts (and in DUI/OVI, the prosecutors and the courts are all the time merging into the same entity) have come up with is that you are not allowed to make the argument. Sound outrageous? You don’t know the half of it. The case on this is State v. Vega (1984), 12 Ohio App.3d 185 and, fittingly, it came out in 1984.

In Vega, the defendant attempted to introduce the testimony of an expert witness who would testify as to the general reliability of intoxilyzers as valid, reliable breath testing machines. His expert witness was Dr. Walter J. Frajola. But the prosecutor filed a Motion in Liminie (a motion to exclude this evidence) so that the jury could not hear such testimony from this medical doctor. The prosecutor was concerned that the jury might hear evidence that the breath testing machines used in Ohio were unreliable and come to the wrong conclusion as to the guilt or innocence of the defendant.

The Ohio Supreme Court has ruled that Ohio Revised Code 4511.19 is a strict liability statute. Defiance v. Kretz (1991) Ohio St.3d 1 at 3 citing State v. Cleary (1986), 22 Ohio St.3d 198 at 199. In Ohio Revised Code Section 4511.191(A)(3), the General Assembly defined an alcohol limit at which a person can no longer drive without posing a substantial danger to himself and others. State v. Tanner (1984), 15 Ohio St.3d 1 at 6.
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Mandatory Days In Jail

Under Ohio law, if you are arrested for DUI/OVI and blow over .170, then face six days in jail, only three of which can be spent in a DIP (Driver’s Intervention Program). Ohio Revised Code Section 4511.19(A)(1)(h), even if this was your first offense of any kind, ever. Get ready for the jail jump suit, the baloney sandwiches and plastic juice bottles. This is the case even if the trial judge does not want to sentence you to days in jail.

For instance, Ohio’s First District Court of Appeals considered a case where the trial court, instead of sentencing the youthful female offender to three days in the program and three days in jail, sentenced her to two consecutive driver’s intervention programs. The prosecutor, wanting the young lady to spend time in jail, appealed the ruling and the First Appellate District Court held that:
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Substantial Compliance and the Horizontal Gaze Nystagmus Test

The Horizontal Gaze Nystagmus Test (HGN) is one of three tests certified as accurate by the National Highway Traffic and Safety Administration (NHTSA). In the test, the police officer has the subject stand before him with his/her head still and the officer moves a pen or other stimulus back and forth before the subject’s eyes. The officer is looking for jerking (nystagmus) in the eyeballs as they move back and forth. The NHTSA has stated in the manual on how to administer the tests (there are two others, the Walk and Turn Test (WAT) and the One Leg Stand Test (OLS)) that such tests must be given in strict compliance with the directions for administration, or the results will be compromised.

In State v. Homan, the Ohio Supreme Court ruled that strict compliance with the NHTSA standards for administration is necessary for their admission into evidence in order to establish probable cause to arrest without a warrant. But the Ohio Legislature decided that the NHTSA, the designer of the test, didn’t know what it was talking about, and brushed aside the warning about strict compliance and passed a new DUI law which stated that “substantial compliance” was okay and so long as there was substantial compliance with the test, it was reliable enough to come in. The Ohio Legislature didn’t conduct any scientific tests or anything when they trashed the NHTSA, but that’s how junk science works.

Anyways, these days, in order for the results of a field sobriety test to serve as evidence of probable cause to arrest, the police must have administered the test in substantial compliance, rather than strict compliance, with standardized testing procedures. Strongsville v. Troutman, 8th Dist. No. 88218, 2007 Ohio 1310 at P 22 citing R.C. 4511.19; State v. Schmitt (2004), 101 Ohio St.3d 79, 82, 2004 Ohio 37, 801 N.E.2d 446. Ohio Revised Code Section 4511.19(D)(4)(b) (rather than the rules of evidence or the Ohio Supreme Court) now governs the introduction of the results of field sobriety tests in criminal prosecutions and provides as follows:

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Extra-Territorial Arrests and OMVI/DUI/OVI in Ohio

There have been several cases in Ohio in which a driver has been pulled over by the police outside of their territorial jurisdiction for driving under the influence. Those drivers have argued that the evidence gained during and after these illegal stops should be suppressed.

Ohio Revised Code Section 2935.03(A)(1) governs a police officer’s jurisdiction to arrest. But only constitutional violations of a suspect’s rights trigger the exclusionary rule. Violations of a suspect’s statutory rights do not. Thus, when determining whether an extraterritorial stop triggers the exclusionary rule, a court must determine, under the totality of the circumstances, whether the statutory violation rises to the level of a constitutional violation, i.e., whether the police officer had reasonable suspicion to stop and sufficient probable cause to arrest appellant. State v. Weideman (2002), 94 Ohio St.3d 501.

In Weideman, an officer who was a half mile out of his jurisdiction observed a vehicle traveling left of center, leave the road twice, and again travel left of center. The officer stopped the vehicle and requested assistance from the Ohio State Highway Patrol. The officer then observed that Weideman, the driver of the vehicle, had bloodshot eyes and smelled of alcohol. The officer detained Weideman who was subsequently arrested by a Highway Patrol officer for driving while under the influence of alcohol.

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Refusal to take a BAC test as evidence of guilt

While it may be a good idea to refuse to take the test back at the station if you think that you are going to flunk it, or if you think you might test over the .170 standard which will necessitate a mandatory three days in jail, the prosecutor is going to introduce your refusal to test into evidence against you in a DUI case. Many defendants in this situation have argued that they have a Fifth Amendment right not to have such a refusal used against them. But these arguments have fallen on deaf ears in Ohio.

The refusal to submit to a breath test is relevant, admissible, and may be used against a defendant at trial. South Dakota v. Neville (1983), 4559 U.S. 553; Maumee v. Anistik (1994), 69 Ohio St.3d 339. As the Ohio Supreme Court explained in Anistik:
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Necessity of Introducing the NHTSA Manual During Motion to Suppress Hearing

The National Highway Traffic and Safety Association (NHTSA) has devised three standardized tests for determining whether or not a suspect is under the influence of alcohol. These are the Horizontal Gaze Nystagmus Test (HGN), the Walk and Turn Test (WAT) and the One Leg Stand (OLS). The NHTSA Manual lays out the proper procedure for administering these tests, and states that even minor deviations from the proper procedures can make the tests invalid.

Some DUI suspects have argued at their suppression hearings that when the state fails to introduce the NHTSA manual into evidence at the hearing, the Court cannot make a determination as to whether the police officer properly administered the tests. They cite to the case of State v. Brown (2006), 166 Ohio App.3d 638 as authority. In Brown, the NHTSA testing manual was never offered into evidence and the officer never testified that he was trained in the NHTSA methods, nor did he testify that he complied with the methods. Thus Ohio’s Eleventh District Court of Appeals held that there was insufficient evidence that the NHTSA tests were administered with sufficient compliance with the testing standards, and suppressed the results of the tests from the evidence. The Court reasoned that:

“Trooper Golias’s testimony that he conducted the field sobriety tests in conformity with the manner and procedures with which he was taught is not the same as testifying that he administered the tests in substantial compliance with the guidelines set forth in the NHTSA manual. Trooper Golias failed to testify regarding the standardized requirements.”

But in the case of Ohio v. Barnett, 2007 Ohio App. LEXIS 4429 (September 21, 2007) Portage Co. App. No. 2006-P-0117, Ohio’s Eleventh District Court of Appeals held that the law does not require the state to introduce the manual to sustain its burden of showing compliance with the testing standards. The Court noted that The state may demonstrate substantial compliance with the NHTSA standards through competent testimony and/or introducing the applicable portions of the NHTSA manual. This means that while the NHTSA manual may be introduced into evidence, substantial compliance can also be shown by witness testimony with respect to the NHTSA standards and the officer’s actions in conformity with the standards.

In Barnett, the officer testified concerning his training in administering field sobriety tests according to NHTSA standards. He testified he successfully completed this training, and that he is certified to administer these tests in the state of Ohio. He testified concerning the NHTSA procedures with respect to each test, and that he administered the tests in compliance with them. Since the officer specifically referred to the NHTSA procedures and that he was certified in them, the Eleventh District Court of Appeals ruled that the introduction of the NHTSA manual was not necessary.

Fight your DUI charge

Enhanced Implied Consent Penalty Declared Unconstitutional

Ohio law states that any person who operates a vehicle upon a highway or any public or private property used by the public for vehicular travel or parking within Ohio or who is in physical control of a vehicle shall be deemed to have given consent to a chemical test or tests of the person’s whole blood, blood serum or plasma, breath, or urine to determine the alcohol, content of the person’s whole blood, blood serum or plasma, breath, or urine if arrested for a violation of the drunk driving statutes.

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Driving After Suspension But Before Reinstatement

There is a big difference between driving under an expired license and driving under a suspended license. Driving under an expired license is a minor misdemeanor under state law, and even where it isn’t (some local ordinances might be tougher), most prosecutors will not ask for jail time if you get current before you plead guilty.
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