Eric Willison, Attorney at Law


What to Do and Not to Do in a Drunk Driving Stop

In this video, I discuss the issues that a driver will face by the side of the road in the context of what to do and not to do:


Ohio Supreme Court Suppresses Results of Intoxilyzer 8000 As Sanction for Failure to Turnover Discovery

In the case of Cincinnati v. Ilg, the suspect was in a one car accident. The police suspected that he had a prohibited amount of alcohol in his system and tested him using the Intoxilyzer 8000. Mr.Ilg’s attorney filed a Criminal Rule 16 discovery request with the trial court.

The suspect, through his attorney, requested discovery of the subject test and instrument-check printouts and forms, diagnostic and calibration checks, maintenance, service, and repair records, radio frequency interference test records, and any computerized or downloaded information or data from the specific Intoxilyzer 8000 machine used to test him. He also sought data from that machine not only as it related to his test, but also for three years prior to his arrest and for three months following it.

He further requested through a subpoena to the program administrator for alcohol and drug testing at the Ohio Department of Health, [a] copy of any and all records maintained by the Ohio Dept. of Health and the Ohio Depart. of [Public] Safety relating to the Intoxilyzer 8000, serial number 80–004052, * * * including but not limited to: a. Any and all computerized online breath archives data, also known as ‘COBRA’ data.” “COBRA data” refers to a database maintained by ODH that records information transmitted from each breath-analyzer machine for each breath test performed in the field, and it also includes personal information of other individuals the machine had tested.

Lastly he subpoenaed records related to the machine’s log-in history, repair and maintenance, radio frequency interference certification, and software changes or modifications, as well as any communications regarding the Intoxilyzer 8000 between ODH and the city of Cincinnati, the Ohio Department of Public Safety, and the manufacturer of the breath-analyzer machine.

No one responded to his discovery requests or his subpoenas. Mr. Ilg moved for sanctions in the form of suppression of the evidence of the Intoxilyzer 8000 test. The trial court gave the prosecutor a deadline to disclose the requested information. This deadline was not met. The trial court excluded the results of the Intoxilyzer 8000 test. The prosecutor appealed but the first District Court of Appeals affirmed the trial court’s suppression of evidence.

The prosecutor appealed again to the Ohio Supreme Court. The Ohio Supreme Court ruled that while a drunk driving suspect cannot challenge the general reliability of breath testing machines which had been certified by the Ohio legislature, drunk driving suspects are free to challenge the results of any individual test. The Ohio Supreme Court held that without the requested information, suspect cannot challenge the individual test.

The Ohio Supreme Court reasoned that since an accused may challenge the accuracy of specific test results rendered by a rather wiser machine the suspect is entitled to discovery of relevant evidence to support his claim that the Intoxilyzer 8000 machine used to test him failed to operate properly while he was being tested. Therefore the Ohio Supreme Court affirmed the ruling of the first District Court of Appeals and the evidence of the Intoxilyzer 8000 test result was suppressed.


Failure to Refridgerate Urine Sample for 12 Hours Results in Suppression

In the case of State v. Mullins, the Defendant became the subject of a vehicle crash investigation on March 24, 2012. Upon being placed under arrest, by Trooper Brown of the Ohio State High-way Patrol, the Defendant agreed to sub-mit to a urine analysis. The Defendant’s urine sample was collected and witnessed by Trooper Hutton of the Ohio State Highway Patrol. The Defendant’s sample was col-lected at 18:44 (6:44 p.m.) on March 24, 2012 and according to the property con-trol form, the sample was given to Troop-er Brown by Trooper Hutton at that same time. The Defendant’s urine sample was kept in Trooper Brown’s locked patrol cruiser for the remainder of his shift. Trooper Brown got off his shift at 6:00 a.m., on March 25, 2012. According to the property control form completed and submitted by Trooper Brown, the Defendant’s urine sample was not placed in the mail (transit) until 6:30 a.m. on March 25, 2012. At no time between the collection at 6:44 p.m. on March 24, 2012 and the placing in the mail at 6:30 a.m. on March 25, 2012, was the Defendant’s urine sample refrigerated.

The Trial Court stated from the bench that: “Alright, well I have reviewed the law in this area and it does appear to me, at least, that this is a close case, frankly. There are some cases that say three, four, maybe five hours is ok. There’s another case out there that says seventeen hours is not ok in terms of getting the urine sample out of the patrol’s hands and into the mail, I guess. The thing that just seems to distinguish those cases is that if the trooper does it while he’s on his shift or as soon as he’s leaving his particular shift that he’s on when he obtains the sample, that seems to be ok. And if he doesn’t do it at the end of that shift but comes back and does it another shift that it’s not ok. And the purposes [sic] of trying to make a bright line, this Court’s gonna rule that if the trooper takes the sample and places it in the mail during his shift or immediately at the conclusion of his shift, then that’s gonna be ok. If he waits beyond the end of his shift to another shift or whatever, then it wouldn’t be ok. But even though it was twelve hours later in this case, the trooper apparently did deposit the sample in the mail as he was leaving his shift. The Court’s gonna rule that that’s ok and the motion to suppress is gonna be overruled for that reason.”

The Defendant plead no contest and appealed the trial court’s decision overruling the motion to suppress.

The Fourth District Court of Appeals reversed the Trial Court. “We find that the approximate 12 hour period in which Mullins’ urine sample was unrefrigerated while not in transit or under examination, like the 17 hour period in DeJohn, is not “clearly de minimis” or simply a “minor procedural deviation” from Ohio Adm.Code 3701-53-05(F). This period of time is more than double the amount of time the Plummer Court characterized as a “relatively slight delay.” It is also double or more than double time periods approved by other Ohio courts. See State v. Price, 11th Dist. No. 2007-G-2785, 2008 Ohio 1134, ¶ 26 (finding retention of a blood sample in an unrefrigerated state for six hours before mailing not a violation); State v. Schell, 5th Dist. CA-7884, 1990 WL 83992, *2 (June 18, 1990) (finding substantial compliance when blood sample went unrefrigerated for five hours).

The Court of Appeals reasoned that: “R.C. 4511.19(D)(1)(b) provides for the admission of evidence on the concentration of alcohol in a defendant’s urine in a prosecution under R.C. 4511.19(A). The State must have the urine analyzed in accordance with methods approved by the director of health. R.C. 4511.19(D)(1)(b). One of these methods appears in Ohio Adm.Code 3701-53-05(F), which provides: “While not in transit or under examination, all blood and urine specimens shall be refrigerated.”

The Court of Appeals then addressed the burden shifting nature of these issues and hearings, pointing out that a burden-shifting procedure governs the admissibility of alcohol-test results. Burnside at ¶ 24. “The defendant must first challenge the validity of the alcohol test by way of a pretrial motion to suppress….” Id. Then, “the state has the burden to show that the test was administered in substantial compliance with the regulations prescribed by the Director of Health.” Id. If the state satisfies this burden, thereby creating a presumption of admissibility, the burden “then shifts to the defendant to rebut that presumption by demonstrating that he was prejudiced by anything less than strict compliance.” Id. “Hence, evidence of prejudice is relevant only after the state demonstrates substantial compliance with the applicable regulation.” Id.

While the Fourth District Court of Appeals acknowledged that some failures to comply with the rules can still result in the admission of the test results, “To avoid usurping a function that the General Assembly has assigned to the Director of Health, … we must limit the substantial-compliance standard * * * to excusing only errors that are clearly de minimis.” Burnside, 100 Ohio St.3d 152, 2003 Ohio 5372, 797 N.E.2d 71, at ¶ 34. Thus errors that are excusable under the substantial-compliance standard must be “minor procedural deviations.” Id.

The Court, in rejecting the prosecutor’s argument that the court should set a rule that urine test results are admissible so long as the police mail in the urine sample at the end of their shift, stated that: “Although it may not be convenient or possible for a trooper to place a blood or urine sample in transit in a timely fashion during his shift, the current version of Ohio Adm.Code 3701-53-05(F) is less burdensome than its predecessor in terms of storage requirements. The State no longer needs to worry about law enforcement storing samples at a specific temperature. Because the code simply requires refrigeration of samples while not in transit or under examination, troopers could arguably comply with Ohio Adm.Code 3701-53-05(F) by placing samples in a small cooler with frozen gel packs in the trunk of their vehicles.”

The case was State v. Mullins, 2013-Ohio-268.


No Reasonable Suspicion of Marked Lanes Violation unless the tire completely goes over the line.

At the hearing, Ohio State Highway Patrol Trooper J.D. Thaxton testified that on September 9, 2012, he was in uniform in a marked cruiser. The Trooper testified that he was traveling northbound on Taylor Road in the City of Pataskala at approximately 1:01 a.m. when he saw appellee’s vehicle go over the solid white fog line on the right and then over the double yellow pavement line on the left. Trooper Thaxton further testified that the video recording device on his cruiser did not capture the vehicle driving over the white fog line because of a small grade in the roadway. However, he testified that he was able to see the vehicle’s tires on the right hand side completely cross over the white line. The Trooper testified that the cruiser’s video did capture appellee’s action in crossing over the solid yellow line to the left into an area containing cross-hatched markings. The video was admitted as an exhibit at the hearing.

On cross-examination, Trooper Thaxton testified that, with respect to the alleged white line violation, the entire tire width was over the white line. He agreed with defense counsel that, in the area where the suspect went over the white line, there was grass right next to the white line rather than a flat berm. On redirect, he testified that there was no doubt in his mind that some portion of the suspect’s right tire went over the right line and that there was no doubt in his mind that the suspect’s tire went completely over the yellow lane line.

Trooper Thaxton initiated a traffic stop of the suspect’s vehicle and she was subsequently arrested for operating a motor vehicle while under the influence of alcohol.

The trial court, in its Judgment Entry, stated that after viewing the video, it was not convinced that the suspect drove completely over the white line and that while the suspect did drive on the white line, driving on the white line was not a violation of R.C. 4511.33. The trial court further found that the suspect did not completely cross over the double yellow lines and that, therefore, there was no violation of R.C. 4511.33. The trial court concluded that there was no violation of R.C. 4511.33 and, therefore, no basis to stop the suspect.

The State of Ohio appealed the case to the Fifth District Court of Appeals. That Court first pointed out that the trial court found that Trooper Thaxton did not have reasonable, articuable suspicion that appellee had violated R.C. 4511.33 by driving on the white line or by driving over the double yellow line. The Court noted that R.C. 4511.33 states, in relevant part, as follows: “(A) Whenever any roadway has been divided into two or more clearly marked lanes for traffic, or wherever within municipal corporations traffic is lawfully moving in two or more substantially continuous lines in the same direction, the following rules apply: (1) A vehicle or trackless trolley shall be driven, as nearly as is practicable, entirely within a single lane or line of traffic and shall not be moved from such lane or line until the driver has first ascertained that such movement can be made with safety.”

The Court noted that while Trooper Thaxton testified that he saw the suspect completely travel a tire width over the right hand solid white fog line, he admitted that the same was not captured by the video camera because appellee was cresting a small rise in the road when she crossed over the fog line.

Pretty convenient.

The Court of Appeals pointed out that the trial court, in its entry, stated that after viewing the video recording, it was not convinced that appellee went completely over the white line. The trial court found that appellee drove on the white line. Having viewed the video recording, this Court cannot say that the trial court’s finding is against the manifest weight of the evidence.

The Fifth District Court of Appeals cited to its previous decision in the case of State v. Richardson, 5th Dist. No. 00-CA-A-01-003, 2000 Ohio App. LEXIS 3419, 2000 WL 1055917 (July 14, 2000). In that case, the appellee was pulled over after an officer observed his vehicle drive on top of the center line a total of four times. After the appellee was arrested for driving under the influence of alcohol, driving under suspension and a marked lanes violation, he filed a Motion to Suppress. In his motion, the appellee argued that the officer did not have a reasonable and articuable suspicion that the appellee had violated traffic laws. After the trial court granted such motion, the State appealed.

In affirming the decision of the trial court, the Fifth District Court, in Richardson, stated, in relevant part, as follows: “Appellee in the case sub judice was cited for violating R.C. 4511.33. It is appellee’s alleged violation of such section that was Officer Whitlatch’s justification for stopping appellee’s vehicle. R.C. 4511.33 requires a motor vehicle to be driven within a single lane. At the January 3, 2000, suppression hearing, Officer Whitlatch testified that appellee’s vehicle ‘traveled over top of the center line [sic] about a tire width four different times’ and that, each time, appellee steered his vehicle back into the northbound lane. Transcript of Proceedings at 15. Officer Whitlatch further testified that appellee’s vehicle never crossed over the centerline of the highway and that appellee never actually went left of center. Based on the foregoing, we agree with the trial court that Officer Whitlatch never observed any violation of R.C. 4511.33 since ‘R.C. 4511.33, the marked-lanes statute, requires a vehicle to be driven within a single lane. This vehicle was operated within a single lane and further did not go left of the centerline. The defendant ‘exactly drove on top of the center line [sic].’ See trial court’s January 5, 2000 Judgment Entry at 5. Accordingly, since appellee did not violate R.C. 4511.33, which Officer Whitlatch cited as the justification for his stop of appellee’s vehicle, Officer Whitlatch lacked an articuable and reasonable suspicion that appellee was operating his motor vehicle in violation of the law. The trial court, therefore, did not err in granting appellee’s Motion to Suppress.” Id. at 2.

Thus because the trial court found that there was insufficient evidence to establish that the suspect drove entirely over the line, there was no reasonable suspicion to pull the suspect over in the first place and all evidence flowing from the stop had to be suppressed.


Constructive Arrest Delivered Up by the Court of Appeals When Needed

There are times when the prosecutor needs you not to be under arrest. This is usually when probable cause to arrest is a close run thing and the later that the judge can find that the suspect was placed under arrest, the more evidence the judge can point to in order to support the probable cause needed for the arrest. If the arrest occurs too early, the evidence is suppressed and the chargs have to be dismissed against the suspect.

Thus we see the Courts all over Ohio engaging in all sorts of judicial gymnastics to find people not under arrest when the probable cause is insufficient (even when guns are pointed at them or when they are in the back of a police car in handcuffs). These people are not under arrest.

But when the police need you to be under arrest, the slightest showing of force is all that is necessary.

When does the suspect need to be under arrest in order to get the evidence in? Because Ohio’s statutory implied consent law is found in R.C. 4511.191(A)(2), which states in pertinent part:

“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 this state 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, drug of abuse, controlled substance, metabolite of a controlled substance, or combination content of the person’s whole blood, blood serum or plasma, breath, or urine IF ARRESTED for a violation of division (A) or (B) of section 4511.19 of the Revised Code, section 4511.194 of the Revised Code or a substantially equivalent municipal ordinance, or a municipal OVI ordinance.” (emphasis in allcaps added)

So in order for the police to use implied consent to get the guy’s blood, he needed to be under arrest. But when there has been a crash and injuries and the suspect is in the hospital, the police often forget about the arrest requirement and they just read the suspect the form without arresting him. When that happens, the suspect can move to suppress the results of the test taken from him because the Fifth District Court of Appeals held in State v. Kirschner, 5th Dist. No.2001 CA00107, 2001 Ohio 1915, that a valid arrest must precede the seizure of a bodily substance, including a blood draw, and must precede an implied consent given based upon Form 2255. State v. Rice, 129 Ohio App.3d 91, 98, 717 N.E.2d 351 (1998).

In the case of State v. Hollis, 2013 Ohio 2586, after a pretty bad traffic accident, the highway patrol officer made contact with suspect in the emergency room. The suspect was laying on a hospital bed covered with a blanket, and the trooper did not note any apparent visible injuries. He noticed the odor of alcohol about appellant’s person and intended to read him the BMV 2255 form.

If the trooper had read the form to the guy, the form had the words “you are under arrest” in it. But the failure to read the BMV form 2255 was a big problem until the Fifth District Court of Appeals came up with the following expedient:

The Court wrote “But the trooper was unable to read the form, however, because appellant would not respond to his questions. [The trooper] described appellant crying and wailing, conscious but unresponsive to [his] questions and statements. [The trooper] said he spent several minutes attempting to communicate with appellant, who said nothing or cried and “toss[ed] his head back and forth.” [The trooper] filled out the BMV 2255 but noted appellant was unable to sign because he was unresponsive.”

Unexplained by the Fifth District Court of Appeals was why it was necessary for the suspect to answer questions in order for the trooper to read a paragraph to him. Why couldn’t the trooper have just read the form to the suspect while he lay there on the bed crying? Whether or not someone is under arrest is examined by the court under an objective rather than a subjective standard.

Nothing in the law requires that the suspect having the form read to him needs be quiet. But the Court needed to make some sort of finding that it was impossible for the trooper to have read the form to the suspect in order to reach the result it needed to have the conviction stand. Apparently a trooper’s ability to read a form to a suspect vanishes when the suspect is crying and unresponsive.

But the Fifth District Court of Appeals hung its hat on the concept of “constructive arrest” stating that: “the reality of constructive arrest, particularly in cases such as the one sub judice in which the subject of the drunken driving investigation is hospitalized or undergoing treatment and arrest per se is not feasible. That doesn’t mean the investigation stops. In the instant case, the trial court applied the rationale of our decision in State v. Groves, which we also find to be applicable. 5th Dist. No. 10CA18, 2010 Ohio 5089. In that case, the driver was hospitalized when he was questioned by the officer and read the BMV 2255; the driver was never taken into “custody” as such because he was undergoing medical treatment and there was no time for a citation to be issued. Nevertheless, we found as follows:

“Despite this court’s holding in State v. Kirschner, [5th Dist.] No.2001CA00107, 2001 Ohio 1915, the administrative regulations in the case sub judice were fulfilled. Appellant was told he was under arrest. A citation would have been issued at the hospital but for appellant’s medical emergency. To disallow the results of the blood draw because of the intervening urgent circumstances would place form over substance. The purpose of the mandatory language of the implied consent law is to inform the suspect of his various rights under 4511.191 and the administrative license provisions for non-consent. The language contained in the BMV 2250 form was sufficient to establish an “arrest.” State v. Groves, 5th Dist. No. 10CA18, 2010 Ohio 5089, ¶ 19.

But in this case the suspect was never told he was under arrest and never read the BMV 2255. But that was okay with the Fifth District, who skipped past that right to the following wording: “We find the trooper’s interaction with appellant at the hospital in obtaining the blood sample after his constructive arrest complied with R.C. 4511.191(A)(2) and is reasonable under the Fourth Amendment. See, State v. May, 5th Dist. No. 2010CA1, 2010 Ohio 4594, ¶ 22, appeal not allowed, 127 Ohio St. 3d 1547, 2011 Ohio 647, 941 N.E.2d 803.”

“After his constructive arrest”? When did that happen? Where was the analysis of how there was a constructive arrest? Not very clever.


Can the Police Arrest Me for Drunk Driving Based Upon a tip from a Citizen Informant?

On May 24, 2012, a driver was cited for an OVI, in violation of R.C. 4511.19(A)(1)(a). The driver entered a plea of not guilty at his arraignment and then filed a motion to suppress all the evidence which was acquired from the stop and subsequent arrest. A hearing on the motion to suppress was held on September 4, 2012.

Two witnesses, and a police officer for the State of Ohio at the motion to suppress hearing. The first witness testified that on May 24, 2012, she picked up her fiancé from his place of employment and began to take him home. Shortly thereafter, she noticed a car directly behind her. The driver of the vehicle was honking the horn repeatedly, yelling, and flashing the car’s lights. As she proceeded down the road, the driver pulled beside her on the passenger side and continued yelling at her, threatening her, and driving erratically. She then followed the car into a parking lot in order to obtain its license plate number. While she was attempting to exit the lot and turn back out onto the main road, she was held up by traffic. The other driver again pulled up behind her while she was waiting for the traffic to clear. Two men exited the vehicle and approached her car. At that point she headed back on the main road; and her fiancé called 911.

When he called 911, he told the police dispatcher that the driver of a blue Ford Focus hatchback with after-market blue headlights on the hood was driving erratically, swerving, and threatening them. Gardner also identified the license plate number of the car. He described the driver as fairly tall with dark hair. Due to the car being on the right side of Gardner when it was pulled beside them, he could not specifically describe the passenger. The dispatcher asked the couple to stop nearby and speak to a police officer.

Meanwhile, the police officer heard the dispatcher relay that someone was being run off the road by a dark colored Ford Focus with blue headlights. Other police officers in the vicinity were headed to the reported location. The police officer was traveling north when he spotted a car matching the description heading southbound. According to the officer, he could see that the occupants of the vehicle were two white males, also matching the description given by dispatch. The headlights on the vehicle were “very distinctive” to the police officer as well.

He turned his police cruiser around and pursued the car. As the car pulled into a “Speedy Mart,” he pulled up behind it and watched appellant step out. Another police officer in an unmarked vehicle pulled up and began to question the appellant’s passenger. Other police officers in the area proceeded north to make contact with the victims. After initiating contact with the appellant, the police officer who testified at the hearing radioed the officers that had interviewed the two witnesses to confirm that he had located the vehicle in question.

The police officer testifying at the hearing proceeded to ask the driver about the night and his actions earlier. The driver answered that he had just come from the area in question; but he denied having any involvement in the incidents reported by dispatch. After further investigation, the police officer charged appellant with the OVI.

After hearing testimony of the witnesses, the trial court denied appellant’s motion to suppress. Thereafter, he changed his plea to no contest and the trial court found him guilty of OVI. This appeal was timely filed on October 29, 2012.

The driver argued on appeal that the police officer did not possess the constitutionally required reasonable and articulable suspicion needed to perform the investigative stop. the driver also contended that the reliability of each of the citizen informants was questionable. The State argued that based upon the totality of the circumstances the police officer appropriately relied on the 911 dispatch and subsequent information to stop appellant’s vehicle. The driver’s sole assignment of error was that the trial court erred when it overruled his motion to suppress.

An Ohio Court of Appeal’s review of a trial court’s decision on a motion to suppress presents a mixed question of law and fact. State v. Jones, 4th Dist. No.11CA13, 2012 Ohio 1523 ¶ 6 citing, State v. Roberts, 110 Ohio St.3d 71, 2006 Ohio 3665, 850 N.E.2d 1168, at ¶ 10 and State v. Burnside, 100 Ohio St.3d 152, 2003 Ohio 5372, 797 N.E.2d 71, at ¶ 8. When considering a motion to suppress, the trial court acts as the trier of fact and is in the best position to resolve factual questions and evaluate witness credibility. Id. Accordingly, we defer to the trial court’s findings of fact if they are supported by competent credible evidence. Id. citing State v. Landrum, 137 Ohio App.3d 718, 722, 739 N.E.2d 1159 (2000). Accepting those facts as true, we must independently determine whether the trial court reached the correct legal conclusion in analyzing the facts of the case. Id. citing Roberts at ¶ 100; Burnside at ¶ 8.

The Fourth Amendment to the United States Constitution and Section 14, Article I of the Ohio Constitution guarantee the right of the people to be free from unreasonable searches and seizures. See State v. Orr, 91 Ohio St.3d 389, 391, 2001 Ohio 50, 745 N.E.2d 1036. These two provisions contain nearly identical language and the Supreme Court of Ohio has interpreted them as affording the same level of protection. Id. “Once the defendant demonstrates that he was subjected to a warrantless search or seizure, the burden shifts to the State to establish that the warrantless search or seizure was constitutionally permissible.” State v. Hansard, 4th Dist. No. 07CA3177, 2008 Ohio 3349, at ¶ 14, citing Maumee v. Weisner, 87 Ohio St.3d 295, 297, 1999 Ohio 68, 720 N.E.2d 507 and Xenia v. Wallace, 37 Ohio St.3d 216, 524 N.E.2d 889 (1988), at paragraph two of the syllabus.

All parties agree that the stop at issue in this case is an investigative stop subject to Fourth Amendment jurisprudence. The investigative stop exception to the Fourth Amendment warrant requirement allows a police officer to stop and briefly detain an individual if the officer possesses a reasonable suspicion, based upon specific and articulable facts, that criminal activity “may be afoot.” State v. Abernathy, 4th Dist. No. 07CA3160, 2008 Ohio 2949 ¶22-24, quoting Terry v. Ohio, 392 U.S. 1, 30, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968); see also United States v. Arvizu, 534 U.S. 266, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002); Illinois v. Wardlow, 528 U.S. 119, 123, 120 S.Ct 673, 145 L.Ed.2d 570 (2000); State v. Andrews, 57 Ohio St.3d 86, 565 N.E.2d 1271 (1991); State v. Venham, 96 Ohio App.3d 649, 654, 645 N.E.2d 831, 833 (1994).

A valid investigative stop must be based upon more than a mere “hunch” that criminal activity is afoot. See e.g., Arvizu at 273; Wardlow at 124; Terry at 27. Reviewing courts should not, however, “demand scientific certainty” from law enforcement officers. Wardlow at 125. Rather, a reasonable suspicion determination “must be based on commonsense judgments and inferences about human behavior.” Id. Thus, “the likelihood of criminal activity need not rise to the level required for probable cause, and it falls considerably short of satisfying a preponderance of the evidence standard.” Arvizui at 274; Wardlow at 123.

A court that is determining whether a law enforcement officer possessed reasonable suspicion to stop an individual must examine the “totality of the circumstances.” See e.g., Arvizu at 273. The totality of the circumstances approach “allows officers to draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that ‘might well elude an untrained person.’” Id. quoting United States v. Cortez, 449 U.S. 411, 418, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981). Thus, when a court reviews an officer’s reasonable suspicion determination, a court must give “due weight” to factual inferences drawn by resident judges and local law enforcement officers. Id.

An informant’s tip may provide officers with the reasonable suspicion necessary to conduct an investigative stop. Abernathy, 4th Dist No. 07CA3160, 2008 Ohio 2949 at ¶ 26. Where the information possessed by the police before the stop stems solely from an informant’s tip, the determination of reasonable suspicion will be limited to an examination of the weight and reliability due that tip. Maumee, 87 Ohio St.3d 295, 1999 Ohio 68, 720 N.E.2d 507 at 299. The appropriate analysis then is whether the tip itself has sufficient indicia of reliability to justify the investigative stop. Id. Factors considered “highly relevant in determining the value of the [informant's] report” are the informant’s veracity, reliability, and basis of knowledge. Id. (Citations omitted).

In this case, the information leading to the stop of appellant came from the witness who called the matter in. Courts have generally classified informants into three groups: the anonymous informant, the known informant, and the identified citizen informant. Maumee at 300. Gardner cannot be classified as anonymous or a known informant (“someone from the criminal world who has provided previous reliable tips”) given the circumstances of his report to police. Id. Therefore, for purposes of constitutional analysis, Gardner is [**10] an “identified citizen informant” in this case. The trial court concluded that Gardner’s tip was both credible and reliable. The trial court also found that sufficient facts existed to create reasonable suspicion for Officer Howell to stop appellant’s vehicle.

In Maumee the Ohio Supreme Court further explained:

While the United States Supreme Court discourages conclusory analysis based solely upon these categories, insisting instead upon a totality of the circumstances review, it has acknowledged their relevance to an informant’s reliability. The court has observed, for example, that an anonymous informant is comparatively unreliable and his tip, therefore, will generally require independent police corroboration. Alabama v. White, [496 U.S. 325, 330, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990).] The court has further suggested that an identified citizen informant may be highly reliable and, therefore, a strong showing as to the other indicia of reliability may be unnecessary: “[I]f an unquestionably honest citizen comes forward with a report of criminal activity—which if fabricated would subject him to criminal liability—we have found rigorous scrutiny of the basis of his knowledge unnecessary.” Illinois v. Gates, [462 U.S. 213, 233-234, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983).]

It is clear from the record that neither Alcorn nor Gardner spoke directly to the arresting officer. However, an officer may rely upon information collectively known to the law enforcement officers involved in the search or investigation. State v. Kelley, 4th Dist. No. 10CA3182, 2011 Ohio 3545, ¶ 26. See also, State v. Cook, 65 Ohio St.3d 516, 521, 605 N.E.2d 70. “An officer need not have knowledge of all of the facts necessary to justify [a search], as long as the law enforcement body as a whole possesses such facts and the detaining officer reasonably relies upon those who possess the facts.” Cook at 521. Thus, for example, “[a] radio broadcast may provide the impetus for an investigatory stop, even when the officer making the stop lacks all of the information justifying the stop.” Id. The Ohio Supreme Court has therefore described the relevant Fourth Amendment inquiry as “whether the law-enforcement community as a whole complied with the Fourth Amendment; the entire system is required to possess facts justifying the stop or arrest, even though the arresting officer does not have those facts.” Id.

The driver argued that the witness who called the matter in provided insufficient information to justify Officer Howell’s stop. Appellant cites to State v. Ramsey, 10th Dist. Nos. 89AP-1298 & 89AP-1299, 1990 Ohio App. LEXIS 4120, 1990 WL 135867 (Sept. 20, 1990) as a factually similar case, wherein the Tenth District Court of Appeals reversed a trial court’s denial of a motion to suppress based upon an improper investigatory stop. In Ramsey, the arresting officer received a radio dispatch that described in great detail the vehicle operated by a possible drunk driver. A private citizen had called the Sheriff’s Dispatcher with the information. She left her name and phone number when she called. A vehicle matching the description was sighted by police officers; and the car was observed for a quarter of a mile. The officers did not observe any traffic violations; but when they pulled the car over, in a mobile home driveway, they believed that the defendant was intoxicated. The defendant was arrested for drunk driving and other outstanding tickets.

The Tenth District Court of Appeals reversed the denial of defendant’s motion to suppress because “the tip has no more reliability than an anonymous phone tip. The informant provided no basis for her knowledge, nor did she demonstrate any special familiarity with defendant’s affairs.” Id. at 5. The court found no indication in the record that the police even attempted to verify the caller’s identity or that any indication existed that the informant could actually be identified in the future if the report turned out to be maliciously made. Id.

The Court of Appeals ruled that the case was distinguishable from Ramsey because of the nature of the informant. The reporting witness provided an eyewitness account of a car driving erratically that threatened the two witnesses. The reporting witness also provided police a description of the car including distinctive aftermarket headlights and a license plate number. The two witnesses then met with a police officer face to face to confirm the information, which the arresting officer received via radio relay. In contrast, the Tenth District Court of Appeals considered the informant in Ramsey to be practically anonymous. Id. at 5-6. Here, concerned for their safety, the witnesses reported the car to police as an eyewitness account. The Court of Appeals ruled that the reporting witness fell under the category of a known citizen informant. Therefore, the witness is more reliable than the informant described in Ramsey and rigorous scrutiny of the basis of his knowledge is unnecessary. Gates, 462 U.S. at 234.

The Court of Appeals agreed with the trial court that the witness’s tip was credible and reliable. The crucial inquiry is to his “veracity, reliability, and basis of knowledge,” since his tip is the basis for the reasonable suspicion. Maumee, 87 Ohio St.3d 295, 1999 Ohio 68, 720 N.E.2d 507 at 299. As noted before, the witness was a highly reliable individual, providing a specific description of the vehicle he witnessed driving erratically. He was concerned for the safety of his fiance and himself. He not only provided details; but he also communicated in person with a police officer that established communication with Officer Howell to confirm further details of the vehicle and driver. We find under the totality of the circumstances that his tip provided reasonable suspicion for the officer to conduct an investigatory stop on appellant. The Court of Appeals ruled that the State met its burden of establishing the stop’s constitutionality.


Can the Police Use My Failure to Immediately move forward after the light turns green to pull me over?

Ohio’s Fifth District Court of Appeals considered an OVI case wherein the police stopped the suspect merely because he did not go right when the light turned green. Rather, the suspect waited about 5 or 6 seconds before moving. The trial court found that this was sufficient basis for a stop of the vehicle but the Defendant appealed the failure to grant his motion to suppress up to Ohio’s Fifth District Court of Appeals.

But in State v. Beghin, 2004 Ohio 2654, the Fifth District Court of Appeals overturned the trial court’s failure to suppress the evidence of this stop. The Court noted that there is nothing illegal about not immediately moving forward once the light turns green. The Court reasoned that “although one may be stopped for going substantially under the speed limit, generally such a defendant has been found to have been seriously impeding traffic or going unreasonable slow to create a safety risk before a stop is justified.” Since in this case there was no showing that traffic was seriously impeded or that the failure to go immediately as the light turned green created a safety risk, then it was inappropriate for the police to have pulled the suspect over.

If you have been charged with drunk driving and you need an attorney in Ohio, you can call me at 614.580.4316 or you can email me at Also, be advised that if my phone rings at 1 or 2 in the morning because you are calling from the roadside in a panic, I will answer it.


The Effects of Failure to File a Motion to Suppress

If you get pulled over for drunk driving, your attorney needs to make sure that he files a Motion to Suppress evidence if he is going to argue that the police failed to conduct the Field Sobriety Tests at the scene correctly. In the case of State v. Cline, 2013 Ohio 1404, the defendant never filed a motion to suppress the evidence of the traffic stop. But when the trial rolled around, the defendant tried to cross examine the police officer using the NHTSA training manual to show the court that the court should not take the officer’s testimony regarding the field sobriety tests seriously.

But the trial court ruled that the defendant’s failure to file a motion to suppress the evidence foreclosed this line of questioning. When the Defendant appealed, Ohio’s Fifth District Court of Appeals held that: “This Court has previously held that failure to timely file a motion to suppress evidence amounts to a waiver of any such issues for purposes of trial pursuant to Crim.R. 12(D) and (H). State v. Fornshell, 5th Dist. App. No. 10 CA 48, 2011 Ohio 3560; State v. Montgomery, Licking App.No. 2007 CA 95, 2008 Ohio 6077, ¶ 43, citing State v. Wade (1973), 53 Ohio St.2d 182, 373 N.E.2d 1244. Here, during the trial, defense counsel attempted to use the NHTSA manual to impeach Ptl. Butler’s testimony. Impeaching her testimony with the manual was tantamount to arguing that evidence with respect to Appellant’s alleged intoxication was illegally obtained, and thus, the proper subject of a motion to suppress. The failure to file a motion to suppress constituted waiver of that issue.”

So if you are going to challenge the testimony against you at trial, it is best to have filed a motion to suppress beforehand.


If I am not Doing Anything Wrong, Can the Police Stop Me Just Because I am Acting Strangely?

“The Fourth Amendment to the United States Constitution and Section 14, Article I of the Ohio Constitution prohibit unreasonable searches and seizures, including unreasonable automobile stops.” Bowling Green v. Godwin, 110 Ohio St.3d 58, 850 N.E.2d 698, 2006 Ohio 3563. In order to make an investigative traffic stop, an officer must have a reasonable suspicion, based on specific and articulable facts, that the motorist was engaged in criminal activity or that the vehicle was in violation of the law. State v. Snyder, 7th Dist. No. 03 BE 15, 2004 Ohio 3200, citing City of Dayton v. Erickson, 76 Ohio St. 3d 3, 12, 1996 Ohio 431, 665 N.E.2d 1091 (1996); Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

But what if you aren’t doing anything illegal or suspicious, just acting strangely? Ohio case law states that the Police may also stop a vehicle pursuant to their community caretaker function. The Ohio Supreme Court recently examined the community caretaker function in State v. Dunn, 131 Ohio St.3d 325, 2012 Ohio 1008, 964 N.E.2d 1037:

“The [United State Supreme Court in Cady v. Dombrowski, 413 U.S. 433, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973)] court explained that local law-enforcement officers “frequently investigate vehicle accidents in which there is no claim of criminal liability and engage in what, for want of a better term, may be described as community caretaking functions, totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute.” Id. at 441, 93 S.Ct. 2523, 37 L.Ed.2d 706. As the court noted in Dombrowski, “[t]he ultimate standard set forth in the Fourth Amendment is reasonableness.” Id. at 439, 93 S.Ct. 2523, 37 L.Ed.2d 706. Thus, the Fourth Amendment protects citizens from only unreasonable government searches and seizures. United States v. Sharpe, 470 U.S. 675, 682, 105 S.Ct. 1568, 84 L.Ed.2d 605 (1985).”

And in State v. Norman, 136 Ohio App.3d 46, 54, 1999 Ohio 961, 735 N.E.2d 953 (3d Dist.1999), the court also described the community caretaking function as it relates to traffic stops:

“Police officers without reasonable suspicion of criminal activity are allowed to intrude on a person’s privacy to carry out “community caretaking functions” to enhance public safety. The key to such permissible police action is the reasonableness required by the Fourth Amendment. When approaching a vehicle for safety reasons, the police officer must be able to point to reasonable, articulable facts upon which to base her safety concerns. Such a requirement allows a reviewing court to answer Terry’s fundamental question in the affirmative: “would the facts available to the officer at the moment of the seizure or the search ‘warrant a man of reasonable caution in the belief that the action taken was appropriate?” 392 U.S. at 21-22, 88 S.Ct. at 1880, 20 L.Ed.2d at 906.”

In the case of State v. Shelley, 2013 Ohio 1116, the trial court found that the stop was consensual and that a reasonable officer in this situation would believe that the vehicle or the occupant may need assistance. The court noted that Trooper Metz observed the vehicle stopped at a yield sign as he drove approximately a quarter of a mile toward the vehicle. He then stopped behind the vehicle and waited another 13 seconds before activating his overhead lights. There was no other traffic, the vehicle had its right turn signal on, and it continued to remain stationary during the entire period of observation. The court concluded that under these circumstances it was reasonable to believe the driver needed assistance or the vehicle was disabled. Thus, the court found the community caretaker exception applied here.

The trial court also relied on this court’s case of State v. Hlinovsky, 7th Dist. No. 09-BE-19, 2011 Ohio 6421, in determining that the initial stop here was consensual.

In Hlinovsky, the trooper observed the defendant’s vehicle traveling very slowly on U.S. 40 around 3:00 a.m. The trooper caught up to the vehicle. The vehicle pulled off to the side of the road. The trooper passed it, and then saw the vehicle turn its headlights off. This caught the trooper’s attention and he wanted to find out what was going on. So the trooper turned around and pulled behind the vehicle. He called the stop in as a disabled vehicle and got out to check on the occupants’ well-being. Upon making contact with the occupants, the trooper smelled alcohol. This ultimately led to an OMVI arrest. The trial court denied the defendant’s motion to suppress evidence from the stop.

On appeal, Ohio’s Eleventh District Court of Appeals found that the initial encounter between the trooper and the defendant was a consensual encounter, rather than an investigatory stop requiring reasonable suspicion. We noted that the trooper did not actually initiate a traffic stop; instead, he approached a vehicle that had pulled to the side of the road and parked in order to ask the occupants some questions. Id. at ¶58. The Eleventh District Court of Appeeals stated that a police encounter is consensual when a person is free to walk away from the officer and may refuse to answer questions. Id. at ¶53, citing U.S. v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980). And the Eleventh District Court of Appeals noted that in general, when an officer merely approaches and questions a person in a parked vehicle, it is a consensual encounter that is not a seizure so as to require reasonable suspicion. Id. at ¶55. The Court further found that the trooper was carrying out his community caretaker function in assisting a potentially disabled vehicle. Id. at ¶64.

In Shelby, the trial court found the stop to be consensual based on Hlinovsky. But the present case is distinguishable. In this case, Trooper Metz pulled up behind appellant and activated his overhead lights. He then followed appellant, with his overhead lights on, to the side of the road. (Tr. 7-8, 28). And once appellant pulled over, the trooper asked to see his driver’s license. (Tr. 10, 31). Additionally, Trooper Metz did not inquire if appellant needed assistance. (Tr. 32-33). Thus, Trooper Metz did not “merely approach” appellant, he used his overhead lights and request for a driver’s license as a show of authority that appellant was not free to leave. See State v. Clapper, 9th Dist. No. 11CA0031-M, 2012 Ohio 1382 (reasonable person in defendant’s situation would be under the impression that she “could not refuse assistance and leave the scene,” when, with overhead lights flashing, the officer demanded to see her license and proof of insurance rather than inquiring whether she needed assistance).

But even though the trial court erred in finding the stop was consensual, the decision to deny the motion to suppress was still proper because of the community caretaker function.

In Clapper, 2012 Ohio 1382, ¶13, the court observed that the community caretaker function has been applied in cases where a vehicle was stationary in a place where it should not be parked because it gave rise to an inference of the vehicle’s or the driver’s impairment. Citing, Bucyrus v. Lewis, 66 Ohio App.3d 256, 583 N.E.2d 1114 (3d Dist.1990) (driver sleeping in vehicle parked in bank’s drive-through lane), State v. Chrzanowski, 180 Ohio App.3d 324, 2008 Ohio 6993, 905 N.E.2d 266 (11th Dist.) (driver sitting in vehicle stopped on the roadway), State v. Chapa, 10th Dist. No. 04AP-66, 2004 Ohio 5070 (driver stopped her vehicle “in the middle of the roadway with its headlights on and leaving no room for other vehicles to pass”).

This case is similar to the other “parked car” cases. Here Trooper Metz observed appellant’s vehicle from a quarter of a mile away stopped at a yield sign. Once Trooper Metz stopped behind appellant’s vehicle, it remained stopped for another 13 seconds until Trooper Metz activated his overhead lights. During this time, there was no traffic that would have prevented appellant from continuing on his way. (Tr. 7, 26). And appellant was blocking Trooper Metz from proceeding without driving around him [**16] into the wrong lane of traffic. (Tr. 8, 26). Also during this time, appellant’s right turn signal was on. (Tr. 26). Based on these considerations, Trooper Metz felt he should “check on” appellant. (Tr. 26).

Appellant contends that once he began to drive away, after seeing Trooper Metz’s overhead lights, this should have alleviated the trooper’s concerns regarding a possible medical emergency or disabled vehicle. Thus, he asserts the trooper should not have stopped him. But at the time Trooper Metz activated his overhead lights, he had a legitimate concern about the condition of the van and its driver. This concern did not immediately vanish when the van began to drive away. Once Trooper Metz’s concern was aroused and he made the decision to check on appellant, it was reasonable for him to follow through with checking on the van and its driver.

Ohio’s 11th District Court of Appeals ruled that the trooper’s actions here were reasonable under the Fourth Amendment. He was able to point to reasonable, articulable facts upon which to base his concern for checking on the driver and the vehicle. The facts articulated by the trooper demonstrate concern over whether the vehicle was having trouble or the driver required some sort of assistance. As such, the trial court properly overruled appellant’s motion to suppress based on the community caretaker function.


If a Tipster is Himself Intoxicated, Will He Be Reliable Enough for that to be Reasonable Suspicion to Pull Me Over?

Before initiating a stop, a “police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant [the] intrusion.” Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Determination of whether reasonable suspicion exists in any given case requires review of the totality of the surrounding facts and circumstances. State v. Bobo, 37 Ohio St.3d 177, 524 N.E.2d 489 (1988), paragraph one of the syllabus. Those circumstances must be viewed through the eyes of the reasonable and prudent police officer on the scene who must react to events as they unfold. State v. Andrews, 57 Ohio St.3d 86, 89, 565 N.E.2d 1271 (1991).

The traffic stop in the case of State v. Boiani, 2013 Ohio 1342 was based solely on an informant’s tip that Boiani was driving under the influence of alcohol. In Maumee v. Weisner, 87 Ohio St.3d 295, 1999 Ohio 68, 720 N.E.2d 507, the Ohio Supreme Court held that a telephone tip can, standing alone, create reasonable suspicion justifying an investigative stop if the tip has sufficient indicia of reliability. Id., paragraph one of the syllabus.

Under these circumstances, the determination of reasonable suspicion is limited to an examination of the weight and reliability of the tip. Id. The focus is on “whether the tip itself has sufficient indicia of reliability to justify the investigative stop.” Id. The most important factors in determining the reliability of an informant’s report are “the informant’s veracity, reliability, and basis of knowledge.” Id., citing Alabama v. White, 496 U.S. 325, 328, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990).

In assessing the reliability of the informant’s tip, the Weisner court stated that it is useful to categorize informants according to their typical characteristics. Id. at 300. It has generally been accepted that there are three classes of informants: the anonymous informant, the known informant, [**6] and the identified citizen informant. Id. The Weisner court explained:

While the United States Supreme Court discourages conclusory analysis based solely upon these categories, insisting instead upon a totality of the circumstances review, it has acknowledged their relevance to an informant’s reliability. The court has observed, for example, that an anonymous informant is comparatively unreliable and his tip, therefore, will generally require independent police corroboration. Alabama v. White, 496 U.S. at 329, 110 S.Ct. at 2415, 110 L.Ed.2d at 308. The court has further suggested that an identified citizen informant may be highly reliable and, therefore, a strong showing as to the other indicia of reliability may be unnecessary: “If an unquestionably honest citizen comes forward with a report of criminal activity — which if fabricated would subject him to criminal liability — we have found rigorous scrutiny of the basis of his knowledge unnecessary.” Illinois v. Gates, 462 U.S. [213,] 233-234, 103 S.Ct. [2317,] 2329-2330, 76 L.Ed.2d [527,] 545.

Id. Finally, the court held that where the informant provides identifying information, including his name and phone number, and the informant remained on the scene, making face-to-face contact a possibility, police have sufficient information to classify that informant as an identified citizen. Id.

But in the Boiani case, the Strongsville police met with the informant in person to verify his report before making the traffic stop. At the suppression hearing, the officer testified that although the informant was intoxicated, he provided an accurate description of the car Boiani was driving, its license plate number, and the car’s general location. The name the informant provided to dispatch was consistent with the identification he provided to the officer in person. Under these circumstances, Ohio’s Eighth District Court of Appeals upheld the lower court’s determination that the informant was an identified informant with information reliable enough to warrant the stop.

Once the police made the stop and began speaking with Boiani, they noticed that Boiani was slurring his speech and his eyes were glassy. There was also a strong smell of alcohol. Based on these observations, the police had reasonable suspicion to investigate further and asked Boiani to step out of the car. When Boiani stepped out of the car, he was unsteady on his feet and refused to perform field sobriety tests. By this time, the police had probable cause to arrest Boiani for DUI. Because the police had reasonable suspicion for the stop and probable cause to arrest Boiani, the trial court properly denied his motion to suppress.

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