In December, 2008, the State of Ohio used a federal grant of $7 million for the purchase of 710 portable breath test (PBT) machines in spite of warnings that the machines were unreliable and subject to legal challenge.

The machines have proven to be vulnerable to errors based on environmental factors including heat and cold, as well as variable such as the length of time a suspect blows into the device.

Undaunted, The Ohio Department of Health began distributing the machines to rural counties hoping to avoid legal challenges by having the machines used in areas of Ohio having less than 3% of the state’s population.

Lawyers in several other states have gotten thousands of convictions thrown out because the manufacturer of the machine, CMI, Inc. of Kentucky refuses to turn over details of the machine’s operations.

But in Ohio, it appears the device will need to be challenged on other grounds due to the fact that a 1984 ruling by the Ohio Supreme Court barred defendants from attacking the reliability of breath tests once they’ve been certified by The Ohio Department of Health. On the other hand, no device may be used in Ohio unless it appears on the Federal List of Approved Breath Evidential Instruments and the ISP approved list of Devices. PBT’s are generally not on the list.

Meanwhile the state continues to put more instruments in the field – slowly. Just 17 out the of 714 original purchased have been used.

Stay tuned!

A recent Ohio Supreme Court case has opened a Pandora’s box. In the case of Estate of Graves v. City of Circleville, 2010 Ohio 168, the court let stand a lawsuit filed against a city and its police officers resulting from the death of an individual killed by a drunk driver.

In the case, a multiple OVI offender names Copley was arrested, once again, for OVI. The next afternoon Copley was released. Finding no “hold” on the vehicle, the police released the vehicle to Copley. The next morning Copley drove his vehicle while intoxicated and caused a collision killing both he and Graves.

The estate filed suit against the officers, alleging that they had breached their duty to Graves by failing to remove Copley’s license plates from his vehicle and by releasing the vehicle to him. More specifically, the estate claimed that (1) R.C. 4507.38 required that Copley’s vehicle be held until his initial court appearance because he had been charged with driving on a suspended license and (2) R.C. 4511.195 required that Copley’s vehicle remain impounded because he had been convicted of operating a motor vehicle under the influence of alcohol (“OMVI”) within the prior six-year period. The estate alleged that the officers were aware that Copley was a recidivist drunk driver who was driving on a suspended license and that the officers violated the law by allowing Copley to obtain his vehicle from the impound lot. The estate further alleged that the officers acted wantonly, recklessly, and with complete disregard for the foreseeable consequences of their actions.

The city and officers defended themselves based upon Ohio’s Sovereign Immunity Statute contained in O.R.C. Chapter 2744. That statute bars any suit against any political subdivision of the state and/or its employees in the performance of their duties. However, the one exception is when the employee acts in a wanton and reckless manner (O.R.C. 2744.03(A)(6)(b)). The city asked the lower court to dismiss the case on that basis.

In its ruling, the court acknowledged the sovereign immunity statute but alluded to the Plaintiff’s claim of wanton and reckless behavior. Therefore, it remanded the case back to the lower court to determine the culpability of the officer’s behavior.

Recently, I received my new telephone books and glued to the front of the book was an advertisement from a local attorney with his “Advise When Stopped for a DUI.” One of his prominent pieces of advise was “Never….Never Agree to take a Breathalyzer Test.” Is this blanket advise sound? In some instances yes. In most instances no. Like most advise, the surrounding circumstances play a major role in the decision. This blog discusses the consequences of one’s refusal.

First, one’s refusal to agree to take a test is a violation of Ohio’s “implied consent” statute. That statute, O.R.C. 4511.191, sets forth the law that the right to drive in Ohio implies the driver’s agreement to submit to a chemical test when requested. They may refuse, but that refusal will result in a one year suspension of their driving privileges in Ohio.

In addition to one’s violation of the implied consent statute, that refusal will trigger the new twenty year “look back” rule. Ordinarily, the enhancement provisions of Ohio’s OVI laws depend upon the number of OVI convictions within the prior six years. As a result of a refusal, the enhancement provision are triggered for any prior OVI violations in the last TWENTY years.

Finally, a recent Ohio Supreme Court decisions permitted courts to increase a violator’s penalties for refusing a chemical test. Historically, Ohio courts held to the rule that while a person’s refusal to take a test violated Ohio’s implied consent law, that person did have a constitutional right to refuse. As such, courts rarely increased a person’s penalties for their refusal to take a test. The Ohio Supreme court’s ruling changed that. The court ruled that the right to drive in Ohio is a privilege and not an inherent constitutional right. Therefore, a court is permitted to increase penalties for refusing without violating the person’s constitutional rights.

Allow me to provide you an example of the hornet’s nest that can result from one’s refusal to take a test. This was true case. My client was driving home from his girlfriend’s house where they were watching a football game. While watching the game, they had a pizza and a “couple of beers.” At one time my client was a heavy drinker and had several violations for OVI earlier in his life. But he had reformed and had no violations for OVI in the last six years. On the way home, he crossed the center line and was stopped by the local police. When asked to take a test, he refused.

Let’s assume he had taken the breathalyzer and been convicted. As a first time offender in six years, he would have faced a first degree misdemeanor carrying the following possible sentence:

Three days in jail or a three day driver’s intervention program, a $375-$1075 fine, a license suspension for six months to one year, and the right to request limited driving privileges for work, medical, etc after fifteen days.

So what were the consequences of his refusal?

First, he received a suspension of his driving privileges for one year. But, that wasn’t the worst of it. His refusal triggered the twenty year look back rule. While he had no violations in the last six years. He had five others in the prior twenty years. Therefore, under Ohio law, he faced a forth degree felony OVI conviction as it was his sixth violation in twenty years. He faced the following penalties: Actual incarceration for a minimum of 120 days (four months) up to 1 year, a $1350-$10,500 fine, a mandatory alcohol addiction program, license suspension for three years to life with no privileges for three years, an alcohol interlock on any car he drove, and a forfeiture of his car to the State of Ohio (he had just purchased, for cash, a new Jeep Cherokee).

So should he have agreed to take the breathalyzer? Of course. Even if convicted, the consequences were minimal compared to what he faced as a result of his refusal.

Knowing the accused’s background is critical in properly advising them. Offering blanket advise against submitting to a test can have dire consequences.

Most practitioners might assume once an individual is placed in a police car, they are in custody and subject to Miranda warnings before any statement made be the person is admissible. A recent Hamilton County case might force an attorney to rethink this assumption.

Miranda warnings must be provided when a defendant is subject to a “custodial interrogation.” A custodial interrogation is “questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way,” Miranda v. Arizona (1966), 384 U.S. 436, 467-468, 86 S.Ct. 1602, 16 L. Ed. 2d 694.

Generally, “motorists temporarily detained pursuant to ordinary traffic stops are not in custody for purposes of Miranda,” State v. Leonard, 1st Dist. No. C-060595, 2007 Ohio 3312, P 19, citing Berkemer v. McCarty (1984), 468 U.S. 420, 440, 104 S. Ct. 3138, 82 L. Ed. 2d 317. But “if a motorist who has been detained pursuant to a traffic stop thereafter is subjected to treatment that renders him ‘in custody’ for practical purposes, he is entitled to the full panoply of protections prescribed by Miranda,” Berkemer v. McCarty (1984), 468 U.S. 420, 104 S.Ct. 3138, 82 L. Ed. 2d 317.

The case that redefines this assumption is State v. Rice, 2009 Ohio 6332. In that case, the defendant was placed, uncuffed, in a police car and admitted have four 16 oz. beers prior to being stopped. He was not Mirandized prior to this statement. The defendant sought to suppress this statement along with field sobriety tests given prior to the Miranda warnings.

The courts reasoning was as follows:

“In this case, Rice was not in custody. Trooper Shimko had valid reasons for removing Rice from his vehicle and placing him in the cruiser. Two other passengers were in the vehicle that was stopped, and Shimko needed to determine whether the odor of alcohol had come from Rice. The interests of safety further justified placing Rice in the cruiser, since Rice had been stopped near high-speed traffic on the side of an interstate highway. Although Rice had been placed in the back seat of the cruiser, this did not transform a routine stop into a custodial interrogation. Trooper Shimko did not subject Rice to a lengthy interrogation, and Rice was not handcuffed while he was in the cruiser. Further, the interaction between Rice and Shimko was neither combative nor intimidating. Because Rice had not been subject to a custodial interrogation, Miranda warnings were not required, and his statements made in the cruiser should not have been suppressed.”

The obvious conclusion that must be drawn from this case (at least for those practicing DUI defense in Hamilton County) is that even though an individual is placed in a police car does not necessarily infer that they are in custody. Apparently, the fact that the individual was placed in a police car where the back doors automatically lock, and his movements restricted, had little influence on the court’s decision.