Many of my readers (in spite of my pleas to the contrary) enter court and attempt to resolve their OVI cases without benefit of counsel. The usual scenario consists of the first time offender pleading to one of the OVI charges, paying a fine, suffering a lengthy license suspension, and attending a 3-day diversion program.

But, because any OVI has a possible jail sentence of 6-months or more, the law mandates that any defendant be given their rights prior to the court accepting a plea. Criminal Rule 11(E) provides that “the court may refuse to accept a plea of guilty or no contest, and shall not accept such pleas without first informing the defendant of the effect of the plea of guilty, no contest, and not guilty.”

The provisions of Crim. R. 44(B) and (C) regarding counsel apply to division (E) of this rule. Crim. R. 44(B) governs the appointment of counsel in petty offenses: “Where a defendant charged with a petty offense is unable to obtain counsel, the court may assign counsel to represent him. When a defendant charged with a petty offense is unable to obtain counsel, no sentence of confinement may be imposed upon him, unless after being fully advised by the court, he knowingly, intelligently, and voluntarily waives assignment of counsel.” The rule goes on to say that the waiver must also be in writing and filed with the court.

A knowing, intelligent, and voluntary waiver of counsel is demonstrated through inquiry by the trial court that is sufficient “to determine whether defendant fully understands and intelligently relinquishes” representation. State v. Gibson, 45 Ohio St.2d 366, 345 N.E.2d 399.

Therefore, any defendant charged with an offense wherein a 6-month sentence, or more, can be imposed must be apprised of his constitutional rights, if not represented by counsel, including their right to an attorney, their right to confront witnesses against them, their right to subpoena witnesses on their behalf, the right to be tried by a jury or by the court, and their right to remain silent and requiring the state to prove its case beyond a reasonable doubt.

These rights must be outlined in open court on the record. His waiver of these rights must also be in writing and kept on file with the court. In fact, if the court fails to comply with the edicts of Criminal Rule 11(E) and 44(B) and (C), no plea to a subsequent OVI can be enhanced.

So, if you insist on representing yourself in court, be sure you are made aware of your constitutional rights, understand them, have them given to you in open court, in writing, and filed with the court.

An unusual but important precedent was just announced by the Sixth Appellate District, Lucas County, Ohio regarding the use of employer mandated chemical tests in OVI prosecutions. The case, Ohio v. Groszewski, 2009 Ohio 4062, appears to champion a defendant’s Fourth and Fifth Amendment rights.

The case involved a City of Toledo employee who was ordered by his supervisor to submit to a breathalyzer test per his employment contract. The contract required all employees to submit to a chemical test when asked. The employee went to the hospital to have the test performed. The results of the test indicated a blood alcohol level of 0.093, just above the legal limit (.08).

At the time a Toledo Police Officer was also at the hospital on unrelated business when he saw the Toledo City Director of Public Service speaking on his cell phone with a Toledo Police captain. The officer then got on the cell phone and was informed that the Defendant may have been driving a city vehicle under the influence. The officer reentered the hospital, interviewed the defendant’s supervisor who said he saw the defendant drive a city vehicle. The results of the breathalyzer were then revealed to the officer. He interviewed the defendant who made incriminating statements and asked the defendant to perform field sobriety tests. The defendant was then arrested for OVI and asked to submit to a blood test.

Prior to trial, the defendant filed a motion to suppress asking that all tests and statements be suppressed. These were denied by the lower court and the defendant appealed.

The appellate court stated, “The Fifth amendment protects persons against compelled self-incrimination, and any testimony given under compulsion invokes that constitutional right, Murphy v. Waterfront Commission, 378 US 52. If the state forces a public employee to choose between either answering incriminating questions or forfeiting his job for refusing to answer, the state cannot use the employee’s statements against him in a subsequent criminal prosecution if the employee chooses to answer because the statements were not given voluntarily, Garrity v. New Jersey, 385 U.S. 493. Thus, all statements made by the public employee under these conditions become immunized testimony.”

Regarding the admissibility of the breathalyzer and blood tests, the court opined that …”a breath test or a blood test to determine alcohol content for the purpose of proving a criminal offense, is a search and seizure within the meaning of the Fourth Amendment. Schmerber v. California, 384 U.S. 757. The Ohio Supreme Court has previously held that the Fourth Amendment prohibits placing a defendant in a position of choosing between allowing a warrantless search or facing criminal penalties, Wilson v. Cincinnati, 46 Ohio St.2d 138.”

The court went on, “In this case, appellant was compelled to submit to the breathalyzer tests and blood tests, or risk forfeiting his employment. In addition, his employment contract limited his consent to the test and release of the results only to the city of Toledo. Nothing in the agreement refers to the possibility of criminal prosecution or release of information to any law enforcement agency. Appellant was not involved in an accident and was not observed by police to be driving in such a way that would indicate that he was under the influence of alcohol. Since appellant did not submit to the test pursuant to a police investigation or court order, both tests would have been warrantless searches in relationship to any potential criminal action.”

“Likewise, any sobriety tests performed were not incident to any initial police investigation. Rather, they were performed only after appellant agreed to present himself for the employer’s requested testing. Therefore, no probable cause initially existed for police even to be present at the hospital for any type of investigation. Appellant submitted to testing solely at the request of his employer, at the advice of his union representative, with only the potential penalty of losing his job as a consequence.”

It is important to note that the court did express it condemnation of the defendant’s actions, but “neither [could they] condone the “ambush” tactics that were employed to create a criminal offense from an employee’s compliance with his employer’s drug/alcohol testing requirement.”

As a result, the court overruled the findings of the lower court and suppressed both the tests and statements of the defendant.

Therefore, under these limited set of facts an employee can be assured that tests taken in compliance with their employment agreement can not be used in a subsequent criminal proceeding. But, it is important to note the narrow parameters of these facts. First, the employment agreement had no covenant permitting the city to share the test findings with any other agency. Second, the officer viewed no independant indicia of a traffic violation or other criminal activity that would justify an investigatory stop. Had any of the facts been different from those in this case, the finding might be different.

When a motorist is stopped and the officer is suspicious of alcohol use, the suspect is normally asked to vacate the vehicle and asked to perform tests to determine physical dexterity and metal awareness. These tests are called field sobriety tests. They normally consist of a horizontal gaze nystagmus test, a “walk-and turn” test, and a “one-legged” test. If the officer observes a certain number of “clues” the officer then may determine there is probable cause to arrest the suspect for OVI.

But many of my clients want to know what level of evidence is necessary for the officer to demand these tests. In other words, when they are stopped for some underlying traffic violation, what needs to be observed and how certain must the officer be before they can demand these tests?

Recently, the Fifth District Court of Appeal, Fairfield County, wrote an excellent opinion on the subject. In the case, State v. Strope, the Defendant was stopped for a headlight violation. While addressing the Defendant, the officer smelled a strong odor of alcohol on the Defendant’s person and observed his eyes were red and glassy. The officer asked the Defendant to vacate the vehicle and perform field sobriety tests. After observing sufficient clues, the officer arrested the Defendant for OVI. Prior to trial the Defendant filed a Motion to Suppress, arguing, in part, that the officer “…lacked reasonable suspicion to conduct field sobriety testing.”

In its opinion, the court stated,

“It is well-established that an officer may not request a motorist to perform field sobriety tests unless that request is independently justified by reasonable suspicion based upon articulable facts that the motorist is intoxicated… Reasonable suspicion is something more than an inchoate or unparticularized suspicion or hunch, but less than the level of suspicion required for probable cause. A court will analyze the reasonableness of the request based on the totality of the circumstances, viewed through the eyes of a reasonable and prudent police officer on the scene who must react to events as they unfold.”

The court went on to say:

“Where a non-investigatory stop is initiated and the odor of alcohol is combined with glassy or bloodshot eyes and further indicia of intoxication, such as an admission of having consumed alcohol, reasonable suspicion exists.”

The Defendant went on to argue that based upon the above that the officer had insufficient articuable facts to rise to the level of reasonable suspicion. The Defendant cited the case of State v. Spillers. In that case, the court opined:

“…a de minimus traffic violation, slight odor of alcohol and admission to having consumed a couple drinks was insufficient to justify the performance of field sobriety tests.”

The Fifth Appellate District disagreed with the Defendant’s argument stating that in the cited case only a “slight” smell or alcohol was observed while in the present case a “strong” smell was noted.

Based on the above, it appears an officer can ask you to perform field sobriety tests if:

1. The officer first observes a traffic or equipment violation justifying a stop and

2. The officer observes multiple indicators of alcohol use.

If you will remember my recent blogs, I discussed the importance of keeping quiet – not stumbling into providing inculpatory statements to police during a traffic stop by answering question you are not required to answer. The question raised by many readers is when does investigatory questioning become an interrogation that requires Miranda warnings?

The law normally requires that Miranda warnings must be given when an individual is in “custody.” “Custody” for purposes of entitlement to Miranda rights exists only where there is a restraint on freedom of movement of the degree associated with a formal arrest. “Interrogation” is defined as any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect.

Whether a person is in custody depends upon the facts and circumstances of each case. The test is whether, under the totality of the circumstances, a reasonable person would have believed that he was not free to leave.

A recent Ohio case exemplifies the fine line between custodial and non-custodial interrogation. The case of State of Ohio v. Feaster, involved an individual who was in the hospital being treated for multiple gun shot wounds. He was interviewed by police officers regarding the incident that caused his injuries. Subsequently, he was indicted on various felony charges. His attorney filed a motion with the court claiming he had not been given his Miranda warnings prior to his interrogation and, therefore, any statements he gave to the police should be suppressed.

The court denied the defendant’s motion. The court reasoned the interview was conducted without the presence of guards or the use of handcuffs and that the defendant understood what was happening and voluntarily engaged in the interview with the officers. The trial court also found that during the interview of the defendant “[he] was not able to go anywhere due to his own medical situation,” not because of any action on the part of the officers. Therefore, the interview was not a custodial interrogation.

While in this writer’s opinion, this is a very narrow interpretation of custodial interrogation, it does point to the dangers inherent when agreeing to be questioned. In applying this case to an DUI/OVI arrest, many an arrest occurs subsequent to an accident while the injured is being treated by EMS or by hospital personnel. The court will look at the “totality of the circumstances” to determine whether questioning is custodial in nature or not. Anything you say might be used against you. Do you want to rely on the court’s interpretation? If the court uses the Feaster case as its precedent, I think not.

In a recent blog I discussed the importance of remaining silent during on OVI investigation. A recent US Supreme Court provides another scenario that buttresses that advice.

The case, Kansas v. Ventris, involved the use of an informant to impeach the testimony of a defendant who denied involvement in a murder. Prior to trial, the police placed an informant in the same cell as the defendant instructing him to “keep [his] ears open and listen” for incriminating statements. According to the informant, the defendant admitted his involvement.

Ordinarily the use of an undisclosed informant used by the police to elicit incriminating statements is in violation of a defendant’s Sixth Amendment right to counsel and is subject to suppression.

The Ventris case carved an exception to that legal tenant. The exception is as follows: If the defendant takes the stand, the informant’s testimony, concededly elicited in violation of the Sixth Amendment, is admissible to challenge the defendant’s inconsistent testimony at trial. In other words, although a statement made by a defendant is ordinarily excluded due to a violation of the defendant’s right to counsel, the statement is admissible to impeach the defendant if the defendant takes the stand and makes a statement inconsistent with that made to the informant.

Applying this case to a typical OVI scenario, you have remained silent during the initial stop and you remained silent during subsequent road side interrogations, during the drive to the police station and during questioning at the station. You are placed in a jail cell with another individual who, in fact, was placed there to elicit incriminating evidence. You admit to him you were driving drunk. He tells the officers what you said. You take the stand and deny you were OVI. Under the Ventris case, the informant’s testimony is now admissible to impeach your testimony!

REMAIN SILENT.