Do not answer questions about how much you have had to drink and when. Do not admit to driving the car. Simply state that it is late and you wish to be on your way and that you don’t want to answer questions. The less you say the better.

Do not participate in field sobriety testing by the side of the road. Do not: follow a pen with your eyes, stand on one leg, walk any line, count backwards, say your ABCs or touch your finger to your nose with your eyes closed. These are all techniques that the police use to build evidence against you to establish probable cause to arrest you and to establish your guilt at trial. If you do these things in the hope that the officer will let you go if you “pass the tests” you are only hurting your attorney’s chances to help you down the road.

Remember that you are likely being video and audio taped during the stop and after it.

Don’t panic. Even if they arrest you, in most cases, they are only doing it to take you back to the station to blow into the machine. Once that is done, most suspects are handed a ticket with a court date and let go an hour or two later if they are sober enough to fend for themselves, or released to a friend or relative if they aren’t. In most cases, you will still get to sleep in your bed that night. Your chances of spending the night in jail are very slim, but they rise precipitously if you are rude to the officer.

Understand that is a foregone conclusion that you are going to be arrested and charged if you are stopped and you smell like alcohol. There is no penalty for the officer if it turns out you were not drunk. But if the officer lets you go and you were drunk and you drive into someone walking the dog, that officer’s law enforcement career is over. So whether you are arrested or not is not the battle. The battle begins when your attorney takes over. Until then, keep your mouth shut and be polite.

Don’t talk to anyone about what happened except your attorney.

Print out this page and put it in your car.

Call Eric Willison at 614-580-4316 for your best DUI OVI defense – all hours

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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The trial court sustained the objections, indicating the questions related to the issue of substantial compliance. Moreover, the trial court prohibited Dean’s counsel from asking any questions on cross-examination as to whether the field sobriety tests were done in substantial compliance with NHTSA guidelines for the administration of such tests. In fact, the trial court refused to permit the defense any cross-examination of the arresting officer relating to the accuracy of the testing process.

In rendering its decision, the trial court stated it relied upon Defiance v. Kretz (1991), 60 Ohio St.3d 1, 573 N.E.2d 32.

In citing Kretz, the Second Appellate District has held, “[a] Crim.R. 12(C)(3) motion to suppress evidence is the proper vehicle to challenge the admissibility of evidence to prove an OMVI charge on a claim that it was not procured pursuant to applicable standards or regulations.” State v. Murray, 2d Dist. No. 2002-CA-10, 2002 Ohio 4809, at P10, citing Defiance v. Kretz, at 5.

But Ohio’s Second District Court of Appeals held that in trying to question the arresting officer in the manner described above, Dean was not challenging the admissibility of the evidence at trial — he was challenging the reliability of the evidence. Thus the Court agreed with Dean that the trial court’s limitation of cross-examination in this respect was an abuse of discretion.