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What Has To Be In An OVI Motion to Suppress? Ohio Supreme Court Clarifies Standard

The case is State v. Codeluppi, Slip Opinion No. 2014-Ohio-1574.

The Ohio Supreme Court has held that a
 highly detailed pleading of the facts and law is not required to trigger the right to a hearing on a motion to suppress.

In this case, the defendant was was charged with operating a vehicle while intoxicated (“OVI”).

There was no video recording of the traffic stop and the field sobriety tests conducted. The police report indicated only:

the law- enforcement officer administered the three field sobriety tests that are standardized by the National Highway Traffic Safety Administration (“NHTSA”) guidelines: (1) horizontal-gaze nystagmus, (2) walk and turn, and (3) one-leg stand. The report described Codeluppi’s actions and the law-enforcement officer’s findings, but did not describe the instructions and demonstrations given by the officer prior to each test.

Under Ohio law, the results of the field sobriety tests are not admissible at trial unless the state shows by clear and convincing evidence that the officer administered the test in substantial compliance with NHTSA guidelines.

The Defendant filed a motion to suppress the evidence obtained during the traffic stop.  The State objected, arguing that the defendant motion lacked “sufficient particularity on the issue of alleged improper administration of field sobriety tests.”

The judge denied the motion, and she later plead no contest and was sentenced.

Ohio Criminal Rule 47 governs motions.  The Rule provides that a motion “shall state with particularity the grounds upon which it is made and shall set forth the relief or order sought. It shall be supported by a memorandum containing citations of authority, and may also be supported by an affidavit.”

The Supreme Court has previously interpreted this rule to mean that a defendant must state the motion’s legal and factual bases with sufficient particularity to place the prosecutor and the court on notice of the issues to be decided.

The court explained that a motion “does not require that a defendant set forth the basis for suppression in excruciating detail. Instead, the question is whether the language used provides sufficient notice to the state.” In this case, the defendant’s  motion met this standard by alleging that the officer had not conducted the field sobriety tests in substantial compliance with NHTSA guidelines.  The court concluded, “This statement was sufficient to identify the issues [the defendant] was raising . . . .  [T]he state could have no doubt about the basis for the motion to suppress.”

 

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OVI Suspect Who Can’t Produce Urine Sample Should Not Face License Suspension

An Ohio Court of Appeals has ruled that a person charged with Operating under the Influence “OVI” who agrees to submit to a urine test, but cannot produce a sample, should not face an automatic license suspension.

The case is State v. Brown, 2013-Ohio-4981.

The defendant was arrested for operating a vehicle while under the influence of alcohol or a drug of abuse.  He agreed to take a breath test; the result of the test indicated that he had a blood alcohol level of 0.000.  The police – apparently – suspected drug abuse so they requested that the defendant agree to submit to a urine test.  He agreed.  However, despite drinking several glasses of water, he was unable to produce a sample.

The police considered this a refusal and, as is required by Ohio law, seized his license and imposed an administrative license suspension.

At a hearing, the police officer testified that the defendant “was not refusing the urine specimen” but “simply could not provide it.”  The officer said:

[the defendant consumed quite a bit of water . . . I don't know how he couldn't. I mean, it was very apparent to me that he was trying but just could not produce.

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OVI Conviction Vacated Because State Failed to Present Sufficient Evidence that Blood Draw Complied with Regulations

An OVI conviction has been reversed because the State failed to prove that the defendant’s blood was drawn and tested in accordance with the appropriate regulations.

The case is State v. Ragle, 2012-Ohio-4253.

The Defendant was charged with operating a motor vehicle while under the influence of alcohol  (“OVI”) after he was involved in a one-car accident.

The Defendant argued that the State failed to prove that his blood was drawn and tested in accordance with the appropriate regulations.  In OVI cases, a defendant must first challenge the validity of the alcohol test by way of a pretrial motion to suppress.  The state then has the burden to show that the test was administered in substantial compliance with the regulations prescribed by the Director of Health.  Once the state has satisfied this burden, the burden shifts to the defendant to demonstrate prejudice by anything less than strict compliance.

In this case, the defendant argued that the there was no evidence that his blood was drawn “with a sterile dry needle” and placed “into a vacuum container with a solid anticoagulant,”    as required by the regulations.  The nurse who had drawn the blood testified that she had no idea if the vials had anticoagulants.  An officer testified that he provided a standard blood and urine test kit to the nurse and that he believed that the vials in the kits contained anticoagulants.

The State did not provide any testimony regarding whether the needle was dry and sterile as required by the regulations.

The court felt that the motion to suppress provided sufficient notice to the state of the specific evidence it was obligated to present at the suppression hearing.  The state could have, but did not, present any evidence from the individuals responsible for assembling the test kits and/or testing the defendant’s blood in order to demonstrate compliance with State regulations.

The court reversed the portion of the conviction that relied upon the blood evidence on the grounds that “we cannot say that the State met its burden to prove that it substantially complied with” the regulations.

 

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Drunk Driving Conviction Reversed Because of Unconstitutional Stop

An Ohio Court of Appeals has reversed a Drunk Driving Conviction.  The Court concluded that the initial stop of the Defendant was made without probable cause in violation of the Fourth Amendment.

The case is State v. Browning, 2012-Ohio-4026.

The case started in March 2011.  Early in the morning, a Patrol Officer Ryan Price observed a car parked on a private drive with a man standing beside it.  The officer noticed that the car had an out of state license plate and observed the defendant get into the car and proceed down the private drive.  He testified as follows:

I didn’t know if the person was taking a leak.  If they were checking the mail.  Getting the trash cans.  Stopped because they were lost.  Being it was an out-of-state plate, pulled in there to check direction or what, but when he got in the car and drove to the back—I know it’s a dead end, so I figured, well, if they’re legit, maybe they’ll turn around and come back.  So I went down the road a little bit, sat in my cruiser, and sure enough the car came back out, got on State Route 21, went southbound.    

The Officer followed the car and pulled it over.  He observed that the defendant appeared to be intoxicated.  The Defendant refused to step out of the car in order to perform field sobriety tests.  He was subsequently arrested and charged with drunk driving.

The defendant argued that the police lacked probable cause for the initial stop.  As a result, his arrest was in violation of the Fourth Amendment to the United States Constitution.

The court agreed.  The court noted that an officer cannot rely on a “mere hunch” that criminal activity was occurring in order to justify a stop.  In this case, the officer “did not state any reasonable, articulable suspicion for stopping” the defendant.  The officer did not observe any traffic violations, and had no reason to believe that the defendant was “engaged in criminal activity” when he “initiated the traffic stop.”

Judge Whitmore dissented.  The judge noted that the officer “had a great deal of experience and encountered” the defendant’s car in a spot where he could reasonably conclude that “the driver was not there for a legitimate purpose.”

 

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Prosecutors Statement in OVI Case that Officers Are Not “Liars” is Not Misconduct

An Ohio Court of Appeals has upheld an OVI conviction where the prosecutor said that the defendant, not the arresting officer, was a “liar.”  The statement was made in closing arguments.

The case is State v. Deal, 2012-Ohio-3903.

The defendant was charged with a felony offense of driving under the influence.  In April 2011 the defendant was pulled over for driving 69 mph in a 55 mph zone.  (The defendant was using the name and social security number of his brother).  The Defendant admitted that he had been drinking and failed two field sobriety tests.  The officer testified that the defendant had a “glazed stare” and speech so slurred he had to repeat his name four times before he could be understood by the officer.  The officer also observed that the defendant had wet his pants.  A half bottle of Jack Daniel’s on the right front passenger floor board.

The defendant refused to take a breath test.

The defendant challenged a portion of the prosecutor’s closing argument that referred to the testimony of two officers.  The prosecutor said in his rebuttal argument to the jury:

And in order to find the defendant not guilty on the OVI, the only way that could happen is for you to conclude that [the first Officer] lied about his observations; that [the second Officer]  lied about the odor of alcohol, the slurred speech, and the bloodshot eyes.  That is the only way to find him not guilty.  You must make that determination that those officers lied to you, because they presented to you a series of observations, any one of which could cause you to conclude that the defendant was under the influence of alcohol. . . . But we know who the liar is.  It’s not the officers, it’s this defendant.

The court rejected the defendant’s argument.  The court said that the “State was making a fair characterization of the evidence.”  Moreover, the court noted that the defendant’s counsel had, in his argument, questioned the credibility of the officers.  The court also noted that the evidence against [the defendant] was substantial and there is no showing how this one statement prejudiced [the defendant] so seriously that a new trial is warranted.”

The defendant was sentenced to a total of six years in prison following a jury trial.

 

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Court Attempts to Clarify Where Appeal of ALS is Filed When OVI Case Involves Felonies.

An Ohio Appeals Court has attempted to clarify where an appeal of an administrative license suspension is filed when a case is bound over from the municipal court to the grand jury.  A case is bound over to the grand jury when felonies are involved.

The case is State v. McPhillamy, 2012-Ohio-3612.

The facts are procedurally complex.  The defendant was the subject of a traffic stop during which he was charged with having weapons while under a disability, improperly handling firearms in a motor vehicle, operating a vehicle while under the influence of alcohol (“OVI”), and refusal to submit to a chemical test.  He was immediately placed on an administrative license suspension (“ALS”).

His case was bound over to the Erie County Court of Common Pleas to present to the grand jury.  The grand jury failed to indict on the OVI charge. The defendant later filed a motion requesting that the Municipal Court set a hearing on his ALS.

The court’s analysis of this issue began with the observation that “It is undisputed that the licensed operation of a motor vehicle is a privilege, not a right.”  The court explained that in Ohio if a motorist, stopped for a suspected OVI refuses to submit to a breath test, the motorist is subject to a mandatory ALS.

The ALS is subject to review by the court hearing the case, and is often stayed pending completion of the entire case.

The defendant argued that due to the bind over for grand jury proceedings, the ALS proceeding “were caught in ‘limbo’ with no court to exercise jurisdiction.”  The court disagreed.  The court said that since an ALS is a civil proceeding, separate from any criminal offense, “a court that has invoked jurisdiction in a license suspension matter retains concurrent jurisdiction to adjudicate all issues and appeals regarding the matter.”  In other words, the Municipal Court where the case was originally filed could retain jurisdiction over the ALS proceedings.

The problem in this case is that the defendant did not comply with the 30 day time limit to to appeal the ALS.  The court said, “Once the matter was transferred, though the procedure is not clear, appellant, during the balance of the 30-day appeal period, could have appealed the ALS in municipal court.”  The appeals court also suggests that the appeal of the ALS could have been filed in the Common Pleas Court.

 

 

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Update on Intoxilyzer 800

News reports this morning that  Cincinnati City Prosecutor Charles Rubenstein has told police and the Highway Patrol to  to stop using the Intoxilyzer 8000.

A number of defense attorneys  have questioned the machine’s accuracy.  According to the papers, “Rubenstein said he does not believe the machine is inaccurate, but said he feels it is in the city’s best interest to let courts continue to rule on the machine’s effectiveness to avoid a backlog of cases.”

This decision came right after the the Twelfth Distrcit Court of Appeals rejected a challenge to the Intoxilyzer 8000.

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Twelfth District Court of Appeals Rejects Challenge to Intoxilyzer 8000

 

The Twelfth District Court of Appeals has upheld the use of the Intoxilyzer 8000 in response to a defense challenge.  The case is State v. Kormos, 2012-Ohio-3128.

The Intoxilyzer 8000 is the new breath testing machines being rolled out throughout Ohio by the Ohio Department of Public Safety.

The defense in Kormos argued that the Intoxilyzer 8000 did not comply with the calibration requirements set forth in Ohio Adm.Code 3701-53-04.  Ohio Adm.Code 3701-53-04(B) states that a a dry gas control test should be performed “before and after every subject test.”  Kormos argued that a new “subject test” occurs each time a person blows, suggesting that the phrase “before and after every subject test” requires dry gas control tests before and after each blow into the machine.

The court rejected this argument.  The court said that “it is quite clear that a ‘subject test’ is synonymous with running the Intoxilyzer 8000 on a single ‘subject,’ i.e., ‘individual’ under law enforcement’s control.”  The court also noted that this view is consistent with what appears to be the Health Department’s current interpretation of the regulation, and that the Health Department has since changed the wording from “Test” to “Sample.”

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