Courts are beginning to adopt the findings in State v. Hoover, 2009 Ohio 4993, permitting lower courts to enhance a person’s sentence for refusing to submit to a chemical test in OVI prosecutions.

Historically, it was thought that a defendant had a constitutional right to refuse to submit to a chemical test. While the refusal could result in an administrative suspension under Ohio’s Implied consent Law, O.R.C. 4511.191, it was thought that it was a violation of the defendant’s Fourth Amendment right to enhance a sentence due to the defendant refusal.

The Third District Appellate Court (Union County, Ohio) had reiterated this long established thinking in rejecting a lower court’s enhancement of a defendant’s sentence due to the defendant’s refusal to submit to a test. But the Ohio Supreme Court rejected this long held interpretation and overruled the appellate court’s opinion. In its opinion the supreme court stated:

“It is crucial to note that the refusal to consent to testing is not, itself, a criminal offense. The activity prohibited under R.C. 4511.19(A)(2) is operating a motor vehicle while under the influence of drugs or alcohol. A person’s refusal to take a chemical test is simply an additional element that must be proven beyond a reasonable doubt along with the person’s previous DUI conviction to distinguish the offense from a violation of R.C. 4511.19(A)(1)(a).”

“Hoover contends, however, that he has a constitutional right to revoke his implied consent and that being forced by threat of punishment to submit to a chemical test violates his rights under the Fourth Amendment to the United States Constitution and Article I, Section 14 of the Ohio Constitution, which provide that persons, houses, and effects are protected against unreasonable search and seizure. However, Hoover has no constitutional right to refuse to take a reasonably reliable chemical test for intoxication…Asking a driver to comply with conduct he has no right to refuse and thereafter enhancing a later sentence upon conviction does not violate the constitution.”

In rejecting an appeal from the Coshocton Municipal Court, The Fifth Appellate District adopted the findings in State v. Hoover. It appears that court, prosecutors and police have an additional hammer to hold over the head of a detainee to demand that they submit to a chemical test.

It would be wise that any advocate advising those arrested for OVI rethink their unwavering advise to refuse a test. There may be valid reasons to do so, BUT the possibility of additional sanctions should be part of the decision making process.

Suppression and dismissal motions are a vital resource for any defendant fighting a charge of OVI in Ohio. This blog has written several articles referring to various motions filed by counsel in defense of an OVI charge. Theses discussion, for the most part, were substantive in nature.

A recent Ohio court of appeals case addresses the rules governing how a motion is presented. It typifies the long held rule that motions can not be generic. They must be written with particularity. The case, In re Minnick, 2009 Ohio 5274, touches on a subject very relevant to motion practice in Ohio- the issue of “particularity.” In this case, the defendant was stopped and eventually charge for OVI. The defense counsel filed a motion to suppress, among other issues, the results of the breathalyzer.

In his motion the defendant stated, “…[he is moving] for a suppression of the evidence obtained by the Van Wert County Sheriff’s Department from the warrantless seizure of the Defendant[.]” The motion then proceeds to list five particular items of evidence that the defendant wanted to be suppressed, including the results of the breathalyzer. The defendant also attached a memorandum in support of his motion to suppress. The bulk of this motion discussed the law surrounding the suppression of evidence flowing from an illegal stop, detention, and/or arrest. The motion also alleged that the field sobriety tests were not done in strict compliance with the applicable standards and were inadmissible. In conclusion, the defendant’s motion read: “Based upon the foregoing the Defendant asserts that there was not sufficient evidence to warrant the administration of the field sobriety tests, the portable breath test and the BAC Datamaster test.”

The lower court denied the defendant’s motion to suppress the results of the breathalyzer. The defendant appealed.

In analyzing the merits of the case, the Third Appellate District Court (Van Wert County) centered its attention on the generic nature of the pleading itself. The court quoted Criminal Rule 47 that stated the rule required, “[a] motion, other than one made during trial or hearing, shall be in writing unless the court permits it to be made orally. It shall state with particularity the grounds upon which it is made and shall set forth the relief or order sought.” In keeping with this rule, the Ohio Supreme Court has held that “the accused must state the motion’s legal and factual bases with sufficient particularity to place the prosecutor and the court on notice of the issues to be decided.” State v. Shindler (1994), 70 Ohio St.3d 54, 1994 Ohio 452, 636 N.E.2d 319.

The court went on to say, “While courts vary in their determinations as to what constitutes “sufficient particularity,” at a minimum, an accused is required to identify some section of the Ohio Administrative Code that is implicated and/or make some sort of assertion that the State failed to follow the proper standards in administering the breath test.”

In sustaining the lower court’s decision, the appellate court concluded that, “The motion contained no allegation that the State violated any one of these requirements nor was there any citation to a particular OAC section that was alleged to have been violated. Moreover, [the defendant] never requested in his motion that the results of the BAC Datamaster be suppressed because of non-compliance with the OAC. Rather, [the defendant] simply made a blanket statement of what the law required the State to prove in order to admit the results in evidence and then requested that the BAC Datamaster results be suppressed because there was not sufficient evidence to warrant [the arresting officer] to administer this test.” In summary, the appellate court opined that the defendant’s motion failed to contain sufficient particularity and, for that reason, the lower court was correct in suppressing the motion.

This appellate court sustained the long held rule that generic motions will not be tolerated. Therefore, in preparing any motion to suppress, the pleading should contain, at minimum:

1. A statement of what the defendant is attempting to suppress,

2. A cite as to the particular administrative code section or what legal right was violated, and

3. A factual summary of the actions of the arresting officer or entity that violated that OAC section or right.