A recent 5th Appellate District case addresses the issue of procedural abnormalities in the prosecution of per se violations. In the case, State v. Whitt, 2010 Ohio 3761, the defendant was involved in a one vehicle accident. The defendant was transported to the hospital prior to the OHP trooper arriving at the scene. The trooper subsequently went to the hospital to interview the defendant regarding the accident.
After being read his Miranda Rights, the defendant declined to answer any questions about the accident. The trooper read and showed the defendant a copy of the Ohio Bureau of Motor Vehicles Form 2255, the so-called implied consent form. The defendant was advised that he would receive a ninety (90) day suspension of his driver’s license if the chemical test to determine the amount of alcohol in defendant’s bloodstream came back with a positive test result, but a one year suspension if he refused to submit to the test. The reader will note, the defendant was never placed under arrest during this sequence of events.
The defendant testified that he submitted to the blood test because he was advised that he would have his license suspended for one year if he refused. The trooper then cited the defendant for OVI. The defendant file a motion to suppress for citing the following reasons:
1. He was not arrested for ovi as required prior to requesting a chemical test. And2. He was advised improperly regarding the consequences of his refusal to take a chemical test.
The lower court denied his motion and the defendant appealed.
The appellate court agreed with the defendant saying, “…Ohio Bureau of Motor Vehicles Form 2255 includes the provision that an officer must read to the alleged offender a passage that specifically states that the offender is under arrest. Revised Code § 4511.191 provides: “(A) Any person who operates a vehicle upon a highway or any public or private property used by the public for vehicular travel or parking…shall be deemed to have given consent to a chemical test or tests of the person’s blood…for the purpose of determining the alcohol…content of the person’s blood…if arrested for operating a vehicle while under the influence of alcohol…or for operating a vehicle with a prohibited concentration of alcohol in the blood, breath, or urine,” State v. Kirschner, 2001 Ohio 1915.
The court went on to cite State v. Rice (1998), 717 N.E.2d 351, saying “The language of R.C. 4511.191 specifically provides that an arrest is necessary, and, throughout the additional sections accompanying this statute, reference is repeatedly made to “the person under arrest” and the “arresting officer.”
Therefore, the court concluded the defendant must be placed under arrest prior to any chemical test being requested.
A recent 5th Appellate District case addresses the issue of procedural abnormalities in the prosecution of per se violations. In the case, State v. Whitt, 2010 Ohio 3761, the defendant was involved in a one vehicle accident. The defendant was transported to the hospital prior to the OHP trooper arriving at the scene. The trooper subsequently went to the hospital to interview the defendant regarding the accident.
After being read his Miranda Rights, the defendant declined to answer any questions about the accident. The trooper read and showed the defendant a copy of the Ohio Bureau of Motor Vehicles Form 2255, the so-called implied consent form. The defendant was advised that he would receive a ninety (90) day suspension of his driver’s license if the chemical test to determine the amount of alcohol in defendant’s bloodstream came back with a positive test result, but a one year suspension if he refused to submit to the test. The reader will note, the defendant was never placed under arrest during this sequence of events.
The defendant testified that he submitted to the blood test because he was advised that he would have his license suspended for one year if he refused. The trooper then cited the defendant for OVI. The defendant file a motion to suppress for citing the following reasons:
1. He was not arrested for ovi as required prior to requesting a chemical test. And
2. He was advised improperly regarding the consequences of his refusal to take a chemical test.
The lower court denied his motion and the defendant appealed.
The appellate court agreed with the defendant saying, “…Ohio Bureau of Motor Vehicles Form 2255 includes the provision that an officer must read to the alleged offender a passage that specifically states that the offender is under arrest. Revised Code § 4511.191 provides: “(A) Any person who operates a vehicle upon a highway or any public or private property used by the public for vehicular travel or parking…shall be deemed to have given consent to a chemical test or tests of the person’s blood…for the purpose of determining the alcohol…content of the person’s blood…if arrested for operating a vehicle while under the influence of alcohol…or for operating a vehicle with a prohibited concentration of alcohol in the blood, breath, or urine,” State v. Kirschner, 2001 Ohio 1915.
The court went on to cite State v. Rice (1998), 717 N.E.2d 351, saying “The language of R.C. 4511.191 specifically provides that an arrest is necessary, and, throughout the additional sections accompanying this statute, reference is repeatedly made to “the person under arrest” and the “arresting officer.”
Therefore, the court concluded the defendant must be placed under arrest prior to any chemical test being requested.
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