Stop & Sniff Case Law Update (by DaytonDUI)
In Kirtland Hills v. Medancic, 2012-Ohio-4333, a recent case out of the Eleventh District Court of Appeals, the Court reaffirmed the principle that just because a police officer smells alcohol on a driver does not mean that the police officer has reasonable and articulable suspicion to continue the detention of the driver and/or remove that driver to administer standardized field sobriety tests. One of the major decision points in the OVI arrest process is the officer’s decision to remove a suspect from his or her car and conductstandardized field sobriety testing. The officer is trained to arrive at this “decision point” by conducting an interview and using specific “pre-exit interview techniques” which include asking for two things simultaneously; asking interrupting or distracting questions; and asking unusual questions. (NHTSA Student Manual VI-4). Additional techniques which an officer may employ include and Alphabet test (begin with E and end with P); a Countdown test (count out loud backward starting with 68 and ending with 53); and the Finger Count test (touch the tip of the thumb in turn to the tip of each finger while simultaneously counting). Absent evidence of intoxication adduced at this point in the investigation, the officer lacks reasonable and articulable suspicion to allow him to request you to step from the car. (NHTSA Student Manual, VI-4, VI-5, VI-6).
In State v. Evans (11th Dist 1998), 127 Ohio App.3d 56, the Court cites factors to determine if an officer has reasonable articulable suspicion of driving under the influence: (1) the time and day of the stop (Friday or Saturday night as opposed to, e.g., Tuesday morning); (2) the location of the stop (whether near establishments selling alcohol); (3) any indicia of erratic driving before the stop that may indicate a lack of coordination (speeding, weaving, unusual braking, etc.); (4) whether there is a cognizable report that the driver may be intoxicated; (5) the condition of the suspect’s eyes (bloodshot, glassy, glazed, etc.); (6) impairments of the suspect’s ability to speak (slurred speech, overly deliberate speech, etc.); (7) the odor of alcohol coming from the interior of the car, or, more significantly, on the suspect’s person or breath; (8) the intensity of that odor, as described by the officer (“very strong,” “strong,” “moderate,” “slight,” etc.); (9) the suspect’s demeanor (belligerent, uncooperative, etc.); (10) any actions by the suspect after the stop that might indicate a lack of coordination (dropping keys, falling over, fumbling for a wallet, etc.); and (11) the suspect’s admission of alcohol consumption, the number of drinks had, and the amount of time in which they were consumed, if given.
This proposition was upheld, with the court stating:
Administration of field sobriety testing is judged under a different standard and requires more than the presence of a single articulable fact. State v. Evans, 127 Ohio App.3d 56, 63-64 (11th Dist.1998). “Because this is a greater invasion of an individual’s liberty interest than the initial stop, the request to perform these [field sobriety] tests must be separately justified by specific, articulable facts showing a reasonable basis for the request.” Evans at 62, citing State v. Yemma, 11th Dist. No. 95-P-0156, 1996 Ohio App. LEXIS 3361 (Aug. 9, 1996).
In this case, the court only sited to the officer’s observation of “extremely strong odor of alcohol” instead of applying the totality of the circumstances test and articulating other facts that could justify the detention. The Court ruled that this was not enough evidence and remanded the case to the trial court. In her dissent, the Honorable Mary Jane Trapp sets forth how differing jurisdictions have applied the EVANS factors.
Some Ohio courts have upheld determinations that the mere presence of a moderate to strong odor of alcohol, coupled with a proper initial stop, is sufficient to justify the administration of field sobriety tests. See, e.g., State v. Tackett, 2d Dist. No. 2011-CA-15, 2011-Ohio-6711 (“[t]his court has, however, repeatedly held that a strong odor of alcohol alone is sufficient to provide an officer with reasonable suspicion of criminal behavior”). See also State v. Schott, 2d Dist. No. 1415, 1997 Ohio App. LEXIS 2061 (May 16, 1997); State v. Haucke, 2d Dist. No. 99 CA 77, 2000 Ohio App. LEXIS 1049 (Mar. 17, 2000); State v. Turner, 4th Dist. No. 812, 1993 Ohio App. LEXIS 40 (Jan. 11, 1993). Other districts have required the presence of additional Evans factors in order to uphold testing. See, e.g., State v. Appelhans, 6th Dist. No. WD-10-026, 2011- Ohio-487 (affirming denial of a suppression motion based upon glassy eyes, slurred speech, odor of alcohol, and refusal to blow into a portable breathalyzer device); State v. Koogler, 12th Dist. No. CA2010-04-006, 2010-Ohio-5531 (reversal of suppression based on odor of alcohol, glassy eyes, and passenger’s possession of an open container); City of Cincinnati v. Bryant, 1st Dist. No. CA-090546, 2010-Ohio-4474 (reversal of suppression based on erratic driving, moderate odor of alcohol, slurred speech, watery and glazed eyes, confusion and clumsiness while retrieving insurance card and exiting vehicle, and admission of alcohol consumption); State v. Burwell, 3d Dist. No. 12-09-06, 2010-Ohio-1087 (affirming denial of a suppression motion based on the early morning hour on a Saturday, erratic driving, odor of alcohol, glassy and bloodshot eyes, and admission of alcohol consumption); State v. Foster, 5th Dist. No. 2009AP020007, 2009-Ohio-4764 (reversal of suppression based on odor of alcohol, early morning hour, guarded and nervous demeanor, driving on a flat tire, and admission of alcohol consumption); State v. Hill, 7th Dist. No. 07-CO-12, 2008-Ohio- 3249 (affirming denial of a suppression motion based on erratic driving, moderate odor of alcohol, bloodshot and glassy eyes, and slurred speech); City of Strongsville v. Troutman, 8th Dist. No. 88218, 2007-Ohio-1310 (affirming denial of a suppression motion based on early morning hour, glassy eyes, slurred speech, moderate odor of alcohol, presence of beer in the back seat, and admission that defendant was coming from a bar).
It will be up to your attorney to demonstrate to the jury that your ability to drive was not impaired at the time of you OVI arrest. It is important to understand that you can be in violation of the law by simply being under the influence. The officer does not need to test your blood breath or urine if he/she believes that sufficient evidence exists for your arrest. Charles M. Rowland II has worked hard to amass the skills, credentials and experience necessary to fight and win your Ohio OVI case. He provides this information so that you will feel empowered and will be informed enough to make the best decision in hiring competent OVI counsel. If you have been arrested in Ohio on charges of OVI, it is important that you consult an attorney right away. Charles M. Rowland is available 24/7 at 937-776-2671 (DUI Hotline); during business hours at 937-218-1DUI (318-1384) or 1-888-ROWLAND (888-769-5263); text DaytonDUI (one word) to 50500 for immediate help on your cell phone; or you can follow DaytonDUI on Twitter or Dayton DUI/OVI defense on Facebook. Charles M. Rowland II limits his practice to the representation of the accused drunk driver. ”All I Do Is DUI Defense.”