The Ohio Director of Health has determined that 20 minutes is sufficient to allow any mouth alcohol to dissipate and not affect the test. So if you were pulled over at 1:00 a.m. and tested at 1:17 a.m., then that test is likely going to be thrown out on your attorney’s motion to suppress since there is no way that you could have been observed for 20 minutes.

“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?

The U.S. Supreme Court held that the Due Process Clause does consider issues of good faith and bad faith when dealing with the failure of the State to preserve evidentiary material of which no more can be said than that it could have been subjected to tests, the results of which might have exonerated the defendant. The U.S. Supreme Court held that requiring a defendant to show bad faith on the part of the police both limits the extent of the police’s obligation to preserve evidence to reasonable bounds and confines it to that class of cases where the interests of justice most clearly require it, i.e., those cases in which the police themselves by their conduct indicate that the evidence could form a basis for exonerating the defendant.

Thus the U.S. Supreme Court held that unless a criminal defendant can show bad faith on the part of the police, failure to preserve “potentially useful evidence” does not constitute a denial of due process of law.” Id. at 57-58, 109 S.Ct. 333, 102 L.Ed.2d 281.

So the Youngblood court established two tests: one that applies when the evidence is “materially exculpatory” and one that applies when the evidence is “potentially useful.” If the state fails to preserve evidence that is materially exculpatory, the defendant’s rights have been violated.

However, evidence is material only if there is a reasonable probability that had the evidence been disclosed to the defense, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine the confidence in the outcome. State v. Johnston (1988), 39 Ohio St.3d 48, 529 N.E.2d 898, paragraph five of the syllabus.

Stated in other words, “To be materially exculpatory, ‘evidence must both possess an exculpatory value that was apparent before the evidence was destroyed, and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means.’” State v. Colby, Portage App. No.2002-P-0061, 2004 Ohio 343, quoting California v. Trombetta (1984), 467 U.S. 479, 489, 104 S.Ct. 2528, 81 L.Ed.2d 413.

Ohio’s Fifth District Court of Appeals has consistently held that the burden of proof is on the defendant to show the exculpatory nature of the destroyed evidence. See State v. Birkhold (Apr. 22, 2002), Licking App. No. 01CA104, 2002 Ohio 2464, State v. Hill (Mar. 8, 1999), Stark App. No. 1998CA0083, 1999 Ohio App. LEXIS 1542, State v. Blackshear (June 19, 1989), Stark App. No. CA-7638, 1989 Ohio App. LEXIS 2410.

If, on the other hand, the state fails to preserve evidence that is potentially useful, the defendant’s rights have been violated only upon a showing of bad faith. The term “bad faith” generally implies something more than bad judgment or negligence. “It imports a dishonest purpose, moral obliquity, conscious wrongdoing, breach of a known duty through some ulterior motive or ill will partaking of the nature of fraud. It also embraces actual intent to mislead or deceive another.” State v. Franklin, Montgomery App. No. 19041, 2002 Ohio 2370.

The case on this is State v. Piper, 2008 Ohio App. LEXIS 147 (January 11, 2008) Delaware Co. App. No. 07CAC030016, out of Ohio’s Fifth District Court of Appeals. The facts of the case were that a City of Delaware police officer ran the plates of a pickup truck which he passed late at night. The plates came back to an owner whose license was under suspension. The officer followed the truck until it stopped, and when a man matching the description of the owner whose license was suspended got out of the driver’s seat, the officer approached him and asked for ID. The driver admitted that he was driving under suspension.

The Delaware City Police patrol cars have a computerized digital video system which records things 24 hours per day onto a 156 gigabyte hard drive. This hard drive has enough storage space for 8 days of recordings and then it starts to record over itself. The defendant did not make a Motion to Preserve Evidence of the recording of the stop until three months after the stop. Ohio’s Fifth District Court of Appeals ruled that the Trial Court properly overruled the defendant’s motion in limine to dismiss the charges since the defendant could not show bad faith in the police’s destruction of the video evidence.

So get your Motion to Preserve in sooner rather than later. Once the Court grants it, your argument about bad faith becomes a lot easier to make when you can show that the police destroyed evidence or failed to preserve it even though there was a court order requiring them to do so.

Complete Guide to Fighting your DUI charge

Technorati Tags: dui, ovi, omvi, dui law, dui arrest, ohio dui law, dui conviction, dui charge, drunk driving

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.

Several Ohio Courts (together with the United States Supreme Court) have ruled that such stops taking place at random, without a warrant, nor probable cause, nor even reasonable suspicion that criminal activity is afoot, are somehow not in violation of the Fourth Amendment and Article I, Section 14 of the Ohio Constitution. Let’s take a look at the genius “legal analysis” that these courts have employed:

In the case of Michigan v. Sitz (1990), 496 U.S. 444 a sobriety check point to which all traffic was required to stop, with an average stop of about 25 seconds per car, was found not to violate the Fourth Amendment. Justice Rehnquist, writing for the majority, first correctly stated that such stops are “seizures” as that term is defined by the Fourth Amendment. But it all goes sideways for the learned Justice from there.

The Court held that the important question was not whether or not the stop at a checkpoint was as seizure, but rather whether such seizures are “reasonable under the Fourth Amendment. The Court said that because the seizures were 1) short in duration (averaging 25 seconds); 2) conducted at checkpoints which would not frighten motorists because they are well lit with officers in uniform everywhere; 3) conducted according to written guidelines; and 4) were 1.5% effective in arresting drunk drivers, this made the random checkpoints “reasonable” under the Fourth Amendment.

The problem with the ruling (as pointed out by Justice Stevens in his dissent) is that just because an intrusion into our Fourth Amendment Rights is slight, does not mean that it is permissible. Courts have consistently required (until this case) that there must still be some reasonable suspicion that the drivers stopped have done something wrong.

The Rehnquist majority has held that where the needs of law enforcement conflict with our Fourth Amendment rights, our rights are not “reasonable” and must give way. But here is a news flash for Mr. Rhenquist (though now passed away). The needs of law enforcement and our Fourth Amendment rights are always in conflict. That’s the point of the Fourth Amendment.

The Rehnquist Majority also held that an arrest rate of 1.5% was sufficient to show the effectiveness of and justification for the program. The dissent scoffed at this notion, and rightfully so. Would a 1.5% return on your money make you want to keep investing in a mutual fund? It took 19 police officers 1.5 hours to arrest 2 suspected drunk drivers (no word on whether or not these two were convicted). Had those 19 officers been out on patrol, looking for cars weaving in and out of lanes, how might the numbers have changed?

The Rehnquist Majority also foreclosed certain debates from taking place, as when the learned justice wrote that “No one can seriously dispute the magnitude of the drunken driving problem….” Statistically, Justice Rehnquist quoted the figure of 25,000 drunk driving deaths each year. The Fatality Analysis Reporting System shows crash fatalities in the U.S. to average between 41,000 and 45,000 per year. Are we really to believe that more than half of these fatalities were caused by drunk drivers, who Rehnquist wrote made up only 1 to 1.5% of the drivers on the road at night?

Mark Twain once said that figures don’t lie, but liars figure. Mr. Rehnquist was all too willing to swallow some statistical nonsense at the price of our liberties.

Another issue that was unaddressed was this business about the 25 second average delay. Did that count the amount of time that people approaching the check point had to wait for the cars in front of them to clear it? What was the longest delay and what was the shortest?

In Ohio, the Second District Court of Appeals was having none of this crap. The Court held as follows:

“In essence, the sobriety checkpoint required all travelers on a particular highway at a particular time to furnish identification, as well as a vehicle registration. From time to time, in other countries, travelers have been required to produce their papers for inspection by the police. This has been a popular tool of totalitarian regimes to maintain control over the citizenry. It has yet to flourish on the soil of this country, and we are reluctant to provide it an opportunity to take root, no matter how laudable the purpose for which it is presently espoused. In our view, the sobriety checkpoint in the case before us offends against the right of citizens to be secure from unreasonable searches and seizures, in violation of the Fourth Amendment to the Constitution of the United States.”

The factors which Ohio’s Second District Court of Appeals relied upon in distinguishing the case from the insanity in Sitz were that the checkpoints 1) detained drivers for an average time of two to five minutes, rather than 25 seconds; 2) the officers required production of driver’s licenses and registration papers; 3) certain motorists credentials were computer checked according to the officers’ whim rather than upon a set plan; and 4) the check point searched not just for drunks, but for unlicensed drivers as well.

The case was State of Ohio v. Blackburn, 1994 Ohio App. LEXIS 1171 (March 23, 1994) Clark Co. App. No. 3084.

Complete Guide to Fighting your DUI charge

Technorati Tags: dui, ovi, omvi, dui law, dui arrest, ohio dui law, dui conviction, dui charge, drunk driving

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”).

Fight your DUI charge

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.


Weideman filed a motion to suppress, arguing that the officer who pulled him over conducted an illegal stop because he was outside his jurisdiction. The Ohio Supreme Court, citing Ohio Revised Code Section 2935.03(A)(1), noted that the officer had in fact violated the statute in stopping Weideman’s vehicle outside of his jurisdiction. However, employing the balancing test of the United States Supreme Court in Wyoming v. Houghton (1999), 526 U.S. 295, to determine whether a governmental action violates the reasonableness requirement of the Fourth Amendment to the United States Constitution, the Ohio Supreme Court concluded that:

“the state’s interest in protecting the public from a person who drives an automobile in a manner that endangers other drivers outweighs Weideman’s right to drive unhindered. These two factors demonstrate that [the officer's] violation of R.C. 2935.03 does not rise to the level of a constitutional violation.” Weideman at 506.

The Ohio Supreme Court held that if the totality of the facts and circumstances demonstrate that police had a reasonable, articulable suspicion of criminal conduct sufficient to warrant the investigative stop and detention, and probable cause to arrest, then while that extraterritorial seizure may violate R.C. 2935.03, it does not rise to the level of a constitutional violation requiring suppression of all evidence derived from the stop. Weideman at 506.

A distinction has been drawn however when the suspect is not doing anything that is a violation of law nor endangering anyone’s life. In State v. Fitzpatrick (2003), 152 Ohio App.3d 122, the Sixth District Court of Appeals excluded evidence where an officer outside his jurisdiction merely observed the defendant’s vehicle “moving kind of slow.” In that case, there was no testimony suggesting that the defendant’s manner of driving presented a danger to other motorists. The officer had no reasonable suspicion of criminal activity on behalf of the defendant until after he had left his jurisdiction and discovered that defendant was in possession of illegal plates. Because this violation did not present an imminent safety danger to other motorists, the Sixth District could see no reason why the officer could not have alerted the police with jurisdictional authority to the general location of the vehicle so that they could make the stop. The court explained:

“We conclude that the government’s interest in making an extraterritorial stop and arrest for a fourth-degree-misdemeanor violation is minimal and outweighed by the serious intrusion upon a person’s liberty and privacy that necessarily arises out of a stop and arrest. Therefore, Officer Snow’s action in making an extraterritorial stop of appellant’s vehicle violates the reasonableness requirement of the Fourth Amendment. Officer Snow’s statutory violation in this case does require suppression of all evidence flowing from the stop.” Fitzpatrick at 126.

In other cases, however, where traffic infractions occurred which could have endangered other drivers, courts have held that so long as there was probable cause to stop and detain the defendant, there was no constitutional violation necessitating the application of the exclusionary rule.

So just because the police officer observed your commit an infraction outside of his jurisdiction, and just because he stopped you outside of his jurisdiction, this will not necessarily require that the evidence against you be suppressed.

Clear your DUI record