While somewhat off the topic of OVI, a recent Ohio case is significant relating to the supervision of child drinking underage.  The case, State v. Wise, 2010 Ohio 2040, involved the underage drinking by a 19 year old and subsequent arrest for violating Ohio underage drinking law, R.C. 4301.69(E)(1).

The law makes it illegal for anyone under the age of 21 to consume an alcoholic beverage nor be under the influence in public.  An exception to the statute occurs when the child consumes alcohol with the permission of and under the supervision of an adult.  In this case, the 19 year old consumed three beers at his mother’s home and then left with friends.  He met several other friends and was walking down a street at 1:00 am, when a police officer stopped the group when he recognized a 16 year old with the group.  The curfew for anyone under the age of 18 was 11:00 pm.  The officer smelled alcohol emanating from the Defendant and charged him with underage drinking.

The crux of the case involved an interpretation of the statute.  The lower court stated:

“Clearly, as long as defendant was in his mother’s home and she knew where he was, defendant was being supervised by his parent. However, when she granted him permission to leave, she could no longer ‘oversee’ or ‘direct’ the defendant. One could argue that defendant was done consuming alcohol, so he no longer needed to be supervised. However, this would seem to defeat the purpose of the supervision, as anyone knows the effects of alcohol take time to start and time to end. If the officer could detect that defendant was drinking, then he should still have been under the direction and oversight of his parent. He was not.”

The lower court found the defendant guilty of underage consumption, R.C. 4301.69(E)(1).

The appellate court disagreed.  The court distinguished between the Defendant’s consumption of alcohol and his being intoxicated in a public place.  In its decision the court stated,

“…the evidence is insufficient to support a conviction under the statute for consuming alcohol. It is undisputed that at the time appellant consumed the alcohol, he was supervised by a parent. At the point in time where appellant leaves the house, the issue no longer is his consumption of the alcohol under R.C. 4301.69(E)(1), but whether he is under the influence of alcohol in a public place.”

At that point the court applied the evidentiary rule in  State v. Taylor (1981), 3 Ohio App.3d 197, 3 Ohio B. 224, 444 N.E.2d 481 where the court stated, “A mere odor of alcohol is not enough by itself to provide probable cause to arrest for driving under the influence of alcohol.”  Applying this rule to the present case, the court pointed out there was no evidence presented that the defendant was under the influence at the time of his arrest.  Therefore, there was insufficient evidence to support his conviction under R.C. 4301.69(E)(1) as no evidence was presented that the defendant was “under the influence” in a public place.

The first question from all of my professional clients charged with an OVI is “Can I lose my license if found guilty of OVI?”  In past blogs, I’ve discussed the effect of an OVI conviction if you have a Commercial Driver’s License (CDL) and the effect of an OVI conviction on your employment.  But, can an OVI conviction result in losing your professional license?

The Ohio Revised Code details over 45 separate occupations and professions that are subject to the provisions of Ohio law.  They range from accounting O.R.C. Chapter 4701) to Orthodists, Prosthestics and  Pedorthists (O.R.C. Chapter 4779).  A number of these statutes specifically state under what circumstances one’s licensee can be subject to discipline (Accountants, Nurses, Social Workers, and Pharmacists, for example).  Others statutes leave it up the governing body of that profession to deal with censure (Attorneys).

Most of theses statutes and codes of responsibility call for the possible censure of any member of the profession performing their occupations while under the influence of drugs or alcohol.  For example, dentists may be disciplined when it is shown they have “…an inability to practice under accepted standards of the profession because of …, dependence on alcohol or other drugs, or excessive use of alcohol or other drugs,” O.R.C. 4715(A)(8).  Nurses can be sanctioned for “Habitual indulgence in the use of controlled substances, other habit-forming drugs, or alcohol or other chemical substances to an extent that impairs ability to practice,” O.R.C.4723.28(B)(9).

Broad latitude is given the governing boards to deal with those in violation.  Reprimands and suspensions, in the most serious cases, are often used to police individual professions.  In recent years, many professions have taken enlightened steps to deal with the use of drugs and alcohol.  For example, the Ohio Supreme Court has established the Ohio Lawyers Assistance Program, a comprehensive program to deal with members of the profession suffering from alcoholism or substance abuse. The program is given broad powers to deal with and attempt to end the addiction.

But an habitual offender must deal with another consequence brought on by recent changes to Ohio’s OVI law.  Under the law, anyone found guilty of OVI for more than 3 times in the past 6 years (or 20 years if the defendant refuses to submit to a chemical test) faces a possible conviction for a 4th degree felony (3rd degree if convicted of a second OVI 4th degree felony during their lifetime).

This presents an entirely new set of circumstances that could call for much more serious sanctions including a suspension of one’s license.  The reason is most occupational statutes or professional codes call for serious sanctions for those convicted of a felony.  A recent Ohio case illustrates the possibility of serious sanctions being imposed in that event.  The case, Disciplinary Counsel v. Landis, 124 Ohio St. 3d 508 involved the suspension of any attorney’s license for his conviction of his 4th OVI within a 6 year period.  While the discipline was extreme, it shows the clear possibility of license suspension or outright revocation when a licensee is convicted of multiple OVI offenses.

What can be learned from this example?  First, if you are a professional practicing pursuant to statute, you should have a complete understanding of the basis by which you can be disciplined.  Second, if you find yourself having problems with alcohol or controlled substances, immediately contact your professional association to see if there are programs available so the issue can be resolved before the problem becomes habitual and subjects you to serious disciplinary action.  Finally, if you find yourself in a situation where you are facing serious disciplinary action, immediately seek advice of competent attorney who is knowledgeable about Ohio’s OVI law and has had experience dealing with defendants with multiple offenses.

If you’ve been a reader of this blog, I’ve discussed the justification for a traffic stop based upon the observations of an informant. A recent Third Appellant District Court case further defines the information necessary to justify the stop.

In this case, State v. Fields, 2009 Ohio 5909, an informant called police dispatch to inform them of a suspected drunk driver. The defendant filed a motion to suppress claiming the police officer had insufficient cause to stop the Defendant. At the motion hearing, the state called the informant who testified as follows:

Q Did you have an opportunity to make a 911 call on November 28th, 2008, around 6 o’clock in the event?

A Yes.

Q And where were you at when you made that call?

A I was heading south on South Sandusky.

Q And is that in the City of Upper Sandusky?

A Yes. Hm-hmm.

Q Wyandot County, Ohio?

A Yeah.

Q Could you describe what you observed?

At no time did the informant testify as to his personal observations of the defendant at the time of the incident. In addition, the officer’s testimony failed to illustrate that he or the dispatcher were aware of the details of the informant’s personal observations.

In its analysis, the court cited State v. Bailey, 2008 Ohio 2254. In that case the arresting officer testified that he had received a dispatch that another police department had received a call of a “possible drunk driver” and that one of the officers at the other department had witnessed the same vehicle speeding. The arresting officer located the vehicle and pulled it over after observing the vehicle’s failure to signal. Neither the other police officer who had observed the vehicle’s speeding nor the dispatcher who had received the citizen’s phone call testified at the hearing. In addition, the citizen informant who had made the original call to the other police department testified extensively to his personal observations of the defendant’s erratic driving. However, there was no testimony demonstrating what, if any, information the eyewitness had relayed to the other police department’s dispatcher concerning the defendant’s erratic behavior. Since the State had failed to demonstrate that the law-enforcement community as a whole possessed facts constituting probable cause to arrest.

In its conclusion, the court stated, “there is an absence of evidence demonstrating that someone in the law enforcement community knew specific facts that would support reasonable, articulable suspicion of criminal activity. The State failed to demonstrate that [the informant’s] personal observations were relayed to the dispatcher, thereby allowing [the arresting officer] to solely rely on the dispatch to justify his investigative stop of [the informant]. Furthermore, [the officer’s] testimony, considered alone, fails to demonstrate reasonable, articulable suspicion of criminal activity. While we acknowledge that there is evidence that a law enforcement officer…eventually talked to [the informant] at the scene, this did not occur until after [the arresting officer] had already approached Fields to make the detention and investigation.

Therefore, this court held that the state must place the following on the record in support of a stop based upon the observations of an informant:

1. The observations of the informant, and

2. That these observations were communicated to the arresting officer, and

3. The observations will support reasonable, articuable suspicion of criminal activity..

For evidentiary purposes, the court will not allow the trier of fact to draw an inference based solely on conclusary statements of a dispatcher. To do otherwise would permit the trier of fact to draw and inference on an inference which would violate the Rules of Evidence.

If you’ve continued to read this blog, its is clear that one’s driving privileges will be suspended for a period of time as a result of an OVI conviction. Minimum suspensions begin at 6 months for first offenders to two years for multiple offenses. Limited driving privileges can be obtained by motion after a period of suspension. The court has discretion in determining those privileges which normally are for employment, educational, medical or alcohol interdiction programs. The driving privileges are set forth in a court order that the defendant must carry with them while driving. In the event the driver is stopped a reading of the order by the police officer will be determinative of whether the defendant has violated the terms of their restrictive driving privileges.

It is important that anyone given privileges during the period of their suspension understand the severe penalties for their violation of those limited driving rights. The additional penalties imposed for driving under an OVI suspension are as follows:

3-180 days in jail or 30-180 days of house arrest

$250-$1000 fine

Mandatory 30 day immobilzation

Restricted Plates

10 days to 1 Year in jail or 90 days – 1 year of house arrest

$500-$2500 fine

Mandatory 60 day immobilization

Restricted Plates

30 days to 1 year jail (no house arrest with

$500-$2500 fine

Automobile is forfeited

As one can see from the chart, if you are caught in violation of the restrictions imposed by the court you can face mandatory jail, large fines and immobilization or forfeiture of your automobile. Therefore, it is vitally important that your attorney be advised of any circumstance that should be reflected in any court order. Among these are child custody issues, unusual work schedules, important family medical issues, attendance at AA or alcohol or drug interdiction programs, or religious requirements. These must be reflected in any order as many courts will strictly construe the restrictions set forth in the court order.

Anyone reading this blog is acquainted with the three scientifically accepted field sobriety tests by NHSTA – Horizontal Gaze Nystagmus, walk and turn and one legged stand tests. As previously discussed, Ohio Revised Code O.R.C. 4511.19(D)(4)(b) requires officers to substantially comply with the standards required of NHTSA (or other recognized protocol) before they can be used a basis for arresting a person for OVI.

But, assuming these standards are not used and the court suppresses the results of these tests can the officers observations be used in the prosecution for OVI. Based upon Ohio jurisprudence, the answer is yes.

A recent Eighth Appellate District case demonstrates this issue. In the case, Village of Brooklyn, Heights v. Yee, 2009 Ohio 4552, the driver was stopped after the officer observed her cross the center line three times. After the stop, the officer conducted three tests – the finger to nose test, the alphabet test, and the finger count test. The driver refused to submit to a walk and turn test or a one legged stand test claiming she was injured in a motorcycle test. Based upon the officer’s observations, Yee was arrested and charged with operating a vehicle under the influence.

In a pre-trial motion, the Yee argued that Ohio only recognizes three standardized field sobriety tests, namely: the Horizontal Gaze Nystagmus Test (HGN), the One-Leg Stand, and the Walk and Turn. Thus, the tests administered by the officer were inadmissible. (It is important to note that the opinion is not clear whether the defendant was asking to suppress the results only or the observations of the officer. But, we can only assume the defendant was seeking to suppress the results AND the officer’s observations)

Nonetheless, the court held that an officer’s observations regarding a defendant’s performance on nonscientific field sobriety tests is admissible as lay evidence of intoxication. The court quoted State v. Schmitt, 101 Ohio St.3d 79, 2004 Ohio 37, 801 N.E.2d 446 in stating, “[t]he manner in which a defendant performs these tests may easily reveal to the average lay person whether the individual is intoxicated…[w]e see no reason to treat an officer’s testimony regarding the defendant’s performance on a nonscientific field sobriety test any differently from his testimony addressing other indicia of intoxication, such as slurred speech, bloodshot eyes, and odor of alcohol.”

Therefore, while the court fails to make clear whether the results were admissible, it is obvious an officer can testify as to his observations. Of course, a well trained attorney fully versed on NHTSA standards and the reasoning behind NHTSA’s rejection of the FST’s as used by the officer in the Yee case will properly cross-examine the officer regarding these disparities.