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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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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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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