Readers of this blog should be familiar with several articles I’ve written regarding probable cause to arrest.  Basically the term is defined as follows: “Probable cause to arrest without a warrant exists where, based on the totality of the circumstances, an officer possesses sufficient information to cause a reasonable and prudent person to believe that a suspect is committing or has committed a criminal offense,  Texas v. Brown (1983), 460 U.S. 730, 742, 103 S.Ct. 1535, 75 L. Ed. 2d 502; Illinois v. Gates (1983), 462 U.S. 213, 230-232, 103 S.Ct. 2317, 76 L. Ed. 2d 527.

But what if the alleged offender is less than 21.  According to the First Appellate District (Hamilton County), probable cause to arrest requires less evidence of impairment.  In the case, State v. Carroll, 2008 Ohio 6832, the defendant, who was 18, was stopped for speeding.  While addressing the defendant, the officer smelled alcohol on the defendant’s breath, and observed that his eyes were glassy and bloodshot.  The defendant admitted consuming beers earlier.  The officer had the defendant exit his vehicle and perform field sobriety tests.  The defendant passed all three tests.

The lower court granted the defendant’s motion to suppress stating that the officer lacked probable cause to arrest the defendant as there was no evidence of impairment.  The appellate court argued impairment is not relevant and reversed and remanded the case.

The court’s analysis of the case began with a citation of R.C. 4511.19(B)(3) which prohibits anyone under 21 years old from driving with a blood alcohol content (BAC) of.02 or higher, “regardless of actual impairment.”

The court went on to say “Field sobriety tests can reveal physical impairment that sometimes accompanies a higher BAC...In determining what constitutes probable cause to arrest for an underage driving under the influence of alcohol (DUI) offense, an officer must look for less obvious indicators of alcohol consumption when assessing an underage drinking driver because these indicators are naturally more subtle than the indicators in a per se offense with a higher prohibited blood alcohol content level. Common sense can and should play a role in an arresting officer's probable-cause determination in an underage DUI case, given that the prohibited per se limit is so minimal. However, an officer should not look for "slight indicators of impairment" when deciding whether to arrest for a violation of R.C. 4511.19(B)(3), since impairment is not at issue.”  Therefore, the fact that the defendant passed all three field sobriety tests was irrelevant.

The appellate court quoted the lower court and, in relevant part, found that 18-year-old had been speeding, that he had smelled of alcohol, that he had glassy and bloodshot eyes, and that he had admitted to drinking a couple of beers a few hours earlier.  Under the circumstances, the court found that the office had probable cause to arrest the defendant therefore, stating that the results of field sobriety tests has no relevance in determining probable cause to arrest a minor for OVI.

Many readers have asked me the consequence of an OVI conviction on their out-of-state drivers licenses.  Whether an Ohio driver or a person convicted in Ohio from another state, the “interstate compact” has an impact on your driving privileges in your native state.  Only four states, Georgia, Massachusetts, Michigan, Wisconsin, and Tennessee, do not belong to the compact.

Basically, the compact requires all states to report any OVI/DUI conviction to all members of the compact.  Upon receipt, that state will communicate the fact to the licensee and sanction them as if convicted in that state.  

For example, lets assume you are convicted in Texas for OVI and that conviction is communicated to the Ohio BMV.  Pursuant to the compact the Ohio BMV will notify the offender and sanction them as if the conviction occurred in Ohio.  For a first offender, their license would be suspended for a minimum period of six months, etc.  Of course, they do have the right to an appeal as prescribed by the notice and should be undertaken in order to obtain limited driving privileges as prescribed by law.  Remember if you file your appeal late, you risk losing ANY driving privileges in Ohio for a minimum of six months!

Now, the obvious question - How sure am I that the conviction will be reported?  This, of course, depends upon the administrative capabilities of the states’ BMVs.  Some states are notoriously lax in their reporting.  Ohio, for example, has the reputation of being very hit and miss.

If you possess an out-of-state license, I strongly recommend you contact an OVI specialist in your state to advise you of the consequences of any conviction in Ohio before entering any plea.  If you are an Ohio licensee, contact an Ohio OVI attorney before pleading in the state you are charged.

If you are a regular reader of this blog, you will remember my discussion of mandatory record keeping relating to breath testing equipment, as required by the Ohio Administrative Code (OAC) and The Ohio Department of Health (ODH).

One of the requirements relate to standard periodic testing required of the breath testing devise and those qualified to administer a breath test using a certified devise.  This testing must be performed by an individual designated as a “Senior Operator” by the Ohio Administrative Code.  The qualifying criteria for a senior operator is as follows:

1.  Must be a high school graduate or taken a General Education Development Test“ (GED), and
2.  Be a certified law enforcement officer sworn to enforce section 4511.19...of the Ohio Revised code or equivalent statute or ordinance, and
3.  Demonstrate a competency to maintain or care for and perform instrument checks by successfully completing a basic senior operator, upgrade or conversion training course for the approved instrument for they are seeking the permit.

The ODC further requires a yearly renewal of that permit by successfully completing an in-service course for the applicable device, including review of self-study materials furnished by the ODH.

A recent lower case decision relating to these requirements demonstrates the necessity to be thorough in the investigation of any per se violation.  The case, State of Ohio v. O’Dell, 164 Ohio Misc.2d 36proves the fallacy inherent in thinking that the institutions of government always to their job.

The defendant filed a Motion to Suppress arguing that the state failed to substantially comply with the OAC in the maintenance of the breath testing device.  The officer who testified was the arresting officer and claimed he was a senior operator which qualified him to administer a breath test using the BAC Datamaster.  During his testimony, the trooper testified the director of the ODH did not give him any self-study materials prior to his most recent renewal.  The trooper further testified that had not taken any refresher course relating to the BAC Datamaster.

The court, in its opinion, outlined the various requirements set forth by the OAC relating to the requirements prior to the renewal of a Senior Operator’s Permit and the failure to comply with these requirements.  The court concluded its discussion by stating:

“Words and phrases in laws and rules must have meaning.  Even if the director of health chose to ignore his own rules by not requiring [the trooper] to complete an in-service course and review self-study materials provided by the director, the court cannot ignore the rules, which was not followed in this case.”

The reader is cautioned that this cases arises from the Franklin County Municipal Court and, while this court is highly respected in the state, its opinion only influences cases within the jurisdiction of that court.  While American jurisprudence evolves from historical court opinion, other local or appellate courts may not agree with the opinion expressed by the Franklin County Municipal Court.  But, having knowledge of this decision may impact on any OVI per se case.

Ohio’s statutes are replete with driving limitations for violations of 4511.19 (DUI/OMVI), driving under suspension violations, certain drug convictions under Ohio’s criminal statute, Title 29, and other miscellaneous statutory violations.  Some limitations are greater than others, some statutes calling for an absolute ban on any privileges for a period of time, others granting limited privileges based upon factors such as prior violations of the same statute.

But, issues can arise regarding a court’s description of those privileges.  R.C. 4510.021(A) requires a court, when granting limited driving privileges, to "specify the purposes, times, and places of the privileges...”

An issue relating to this statute arose in Warren County (12th Appellate District).  The case, State v. Butler, 2011 Ohio 4565, involved a defendant’s violation of Ohio drug law.  The defendant incurred a three year suspension of his driving privileges.  After the three year suspension expired, the defendant made his application for limited privileges.  The lower court granted privileges permitting the defendant to drive between 6:00 a.m. and 7:00 p.m., Monday through Saturday. The entry further prohibited the defendant from consuming alcohol while driving or in the 12 hours preceding his driving, and from operating a vehicle while under the influence of any drug of abuse.

The state appealed claiming the court failed to comply with R.C. 4510.021(A) as it failed to specify the purpose, times and places of the privileges.  The appellate court agreed with the state and remanded the case back to the lower court for further proceedings to correct the entry.

Therefore, it is vitally important that the court properly comply with the statute to save everyone time and expense.  To properly comply the entry should:

1.  State the times and days the applicant may drive, and
2.  State the purpose or purposes for which the privileges are being granted, and
3.  State where the applicant may drive.

A typical entry by most court’s may read as follows: “The defendant may drive between the hours of _____ am to ____pm for work, medical, and religious purposes and to comply with court and probation orders and  appearances.”  Is this specific enough to comply with R.C. 4510.021(A)?  Only time and jurisprudence will tell.

If you are reader of this blog, you already know that Ohio law requires that the accused be informed of the consequences of their failure to submit to a chemical test prior to taking the actual test.  This “disclosure” is codified in ORC 4511.192 and is contained on the reverse side of Form 2255 that is read to the accused prior to testing.  The disclosure states:

 
“You now are under arrest for ….. If you refuse to take any chemical test required by law, your Ohio driving privileges will be suspended  immediately, and you will have to pay a fee to have the privileges reinstated. If you have a prior of OVI, OVUAC, or operating a vehicle while under the influence of a listed controlled substance or a listed metabolite of a controlled substance conviction under state or municipal law within the preceding twenty years, you now are under arrest for state OVI, and, if you refuse to take a chemical test, you will face increased penalties if you subsequently are convicted of the state OVI. If you take a chemical test, you may have an independent chemical test taken at your own expense.”

 
What if Form 2255 contains inaccurate information regarding the length of suspension?  What, if after reading the required language, the officer reads the inaccurate information contained on the form?  Does this supply grounds for suppressing the results of any chemical test?

 
One court in Ohio has weighted in one aspect of this issue.  In the case of State v. Noster, 2011 Ohio 2730, the First Appellate District Court (Hamilton County) reversed the decision of a lower court who suppressed the results due to the accused being provided incorrect information on the bottom of Form 2255 regarding her length of suspension.  In its opinion the court said:

 
“The fact that BMV Form 2255 contained incorrect information regarding length of suspension in a different section placed lower on the form that was not read aloud to Noster is of no effect and does not detract from the adequacy of the information provided to Noster concerning the consequences of refusal. In Bryan v. Hudson, [77 Ohio St.3d 376, 380, 1997 Ohio 261, 674 N.E.2d 678], the Ohio Supreme Court clearly held that, when informing an arrestee of the consequences of refusing to submit to a chemical test, an officer need not inform the arrestee of the exact length of the ALS faced.”

 
The court went on, “We hold that the arresting officer was not required to inform Noster of the exact length of her potential ALS, and that the officer complied with the requirements of R.C. 4511.192(B) by reading the top portion of BMV Form 2255. Noster was adequately informed of the consequences of refusing to submit to a breath test and the trial court erred in concluding otherwise.”

 
In this instance the officer did not read the information contained at the bottom of the form and, therefore, that did not enter into the court’s decision.  But, what if the officer HAD read the misinformation, or better yet, volunteered misinformation?

The Noster court carefully avoided responding to that consequence.
We will wait for another time and another court to respond to that issue.