There are two types of traffic stops and different constitutional standards apply to each. These traffic stops are characterized as the “non-investigatory” traffic stop and the other the “investigatory” traffic stop.

The most common stop is the non-investigatory traffic stop. It occurs when an officer observes a violation of the traffic code. Upon observing the violation, the officer stops the driver to issue a citation.

This type of stop requires probable cause, that is, a reasonable ground for belief of guilt, which is provided when the officer witnesses the traffic violation, State v. Downs, 2004 Ohio 3003, State v. Moeller, 2000 WL 1577287. De minimus violations can form a sufficient basis for this type of stop owing to the fact that the officer personally observed the violation.

This does not mean that the stop can be pretextual – an alleged violation for the purpose of stopping the driver when no actual violation occurred, ie. Low tire pressure, spider crack in the windshield, gas tank cap open. But, as long as a legitimate basis for the stop exists, the subjective intent or motivation of the officer does not invalidate the stop, Whren v. United States, 517 U.S. 806. The stop can be pre-textual as long as there is some violation that the officer observes or believes he observes.

The second type of traffic stop is an investigatory traffic stop. It has been referred to as “the motorized equivalent of a Terry Stop,” State v. Downs, 2004 Ohio 3003. This stop permits the officer to stop the vehicle is the officer has reasonable suspicion based on specific, articuable facts than an offense has been or is being committed, State v. Slider, 2008 Ohio 2318., State v. Downs, Supra.

In this type of stop the officer does not necessarily see a specific violation but does have sufficient reason to believe a criminal act has occurred or is occurring and the officer seeks to confirm or refute his or her suspicion, State v. Moeller, Supra. Reasonable suspicion is a lesser standard than that of reasonable cause required to make an arrest.

This type of stop is predicated upon informant’s tips, 911 calls, or random plate checks. The reader is directed to prior blogs regarding the discussion of informant’s tips as a basis for a traffic stop.

In summary, where the officer personally observes a traffic violation (a non-investigatory stop), he may stop the vehicle. Where the officer does not personally observe the traffic violation (an investigatory stop), the officer must point to specific articuable facts that an offense has occurred or is occurring.

A recent Lorain County case discussed a pertinent issue relative to OVI. That issue, in the case of Allstate Ins. Co. v. Jaeger, 2009 Ohio 5756, concerned parental liability for the acts of their child. The case arose from the actions of a 15 year old who became intoxicated and crashed into another’s property damaging a garage and a fence. Allstate insurance paid the claim of its insured and then sued the parents of the minor. The theory of liability was two-fold: (1) O.R.C. 3109.09(B), the parental liability statue and (2) common law negligent supervision.

The statute’s language is as follows: “[a]ny owner of property . . . may maintain a civil action to recover compensatory damages not exceeding ten thousand dollars and court costs from the parent of a minor if the minor willfully damages property belonging to the owner or commits acts cognizable as a ‘theft offense…involving the property of the owner.” Therefore, there are two independent grounds for liability:

1. A child’s wilful damage to property, or

2. A child’s cognizable act of theft involving property of the owner.

In order for a parent to be liable in the first instance, it must be shown that the child intentionally caused the damage to the property. The Supreme Court of Ohio distinguished between “wanton negligence” and a “willful tort” that “involves the element of intent or purpose,” A parent may not be held liable under the willful acts provision of Section 3109.09 for damage caused by joyriding in a stolen car unless the child also intentionally caused the subsequent damage, Motorists Mut. Ins. Co. v. Bill, 56 Ohio St. 2d 258, 266, 383 N.E.2d 880. Thus, the court distinguished between a negligent act and an intentional one. Based upon that dicta, the court determined the act of the child had to be intentional not merely negligent. Therefore, in order to prevail the plaintiff must prove that the child intended to damage property before parental liability will attach. Since Allstate could not prove that the child intentionally damaged the property, liability did not attach.

In the second instance parental liability arises under the ‘theft provision’ of R.C. 3109.09 when the child has engaged in conduct which is the equivalent of theft and the property thereafter is damaged, regardless of whether the child acted in a willful manner at the time the property was damaged, Conover v. McCutcheon, 9th Dist. No. 1832, 1990 Ohio App. LEXIS 1329, 1990 WL 40163. Therefore, if the act of the child amounts to a “theft” as defined by law, the parent can be held liable in the event of damages caused as a result of that “theft” whether or not the child acted wilfully.

While it is not pertinent to this discussion, I point out that the court denied liability under the second ground because although the child did “steal” the car, Allstate was not the owner of the damaged property as required by the statute.

Although at common law a parent is not ordinarily liable for damages caused by his child’s wrongful conduct, “liability can attach when the injury committed by the child is the foreseeable consequence of a parent’s negligent act,” Huston v. Konieczny, 52 Ohio St. 3d 214, 217, 556 N.E.2d 505 (1990). The Ohio Supreme Court has outlined three ways that parents may incur liability: (1) negligent entrustment; (2) negligent supervision, and (3) consenting to or directing the child’s wrongful conduct.

The relevant element in any negligence theory is that of foreseeablility. In the case of parental liability, could the parent foresee the actions of their child? In the Allstate case, the court pointed to the fact that “…[the parent] pointed to evidence tending to show that she did not know of any prior instance wherein her son had acted in a similar manner, endangering others or their property by using a car. She also pointed to evidence that she had supervised her son to the extent that she had spoken with him on the evening of the incident and she detected no cause for concern that he might ‘do anything that would be dangerous to himself or to others.’”

The court concluded that “…reasonable minds could only conclude that [the parent] did not know, nor should she have known, that injury to another was a probable consequence of her son’s behavior. Therefore, the court denied liability under this theory of liability.

While the subject matter of this blog is the theory of “Parental Liability,” it is important to note the potential consequence to a parent who knowingly allows their child to operate a vehicle knowing or having reason to believe the child is under the influence of alcohol or drugs or both, or might potentially be under the influence (prom, school dance, fraternity/sorority party, etc.).

Legal experts have debated for years the issue of restricted freedoms due to actions that might not be criminal by definition. The major debate centers around sentence enhancement due to one’s refusal to submit to chemical testing, i.e. blood draws, DNA tests, etc. Even the US Supreme Court has raised the ire of many legal scholars because of its differing opinions relating to many of these freedoms.

If you read this blog, a recent article discussed one appellate court’s opinion regarding the criminalization of a defendant’s right to refuse to submit to a chemical test. While most legal scholars side on a defendant’s right to refuse without the stigma of an enhanced sentence, the Fifth Appellate Court in State of Ohio v. Adam, sustained the lower court’s right to enhance the defendant’s sentence for his refusal to submit to a chemical test.

Apparently, the Ohio Supreme Court, in its recent decision in State v. Hoover, 2009 Ohio 4993, has put the issue to rest (at least in Ohio) for multiple offenders. In that case, the defendant refused the breathalyzer and his sentence was doubled due to his violation of O.R.C. 4511.19(A)(2). That statute permits the enhancement of an OVI sentence if the defendant refused to submit to a chemical test and has a prior conviction in the last 20 years.

The defendant argued that the statute violated his Fourth and Fifth Amendment Rights which protects him from illegal searches and seizures and violations of his due process rights. The court disagreed stating that the right to drive in Ohio is not an inherent constitutional right. It is a privilege that does not have the same constitutional safeguards.

The court cited the cases of Westerville v.Cunningham, 15 Ohio St. 2d 121 and Schmerber v. California, 384 U.S. 757 that stated section 4511.191 of the Ohio Revised Code, does not violate the search and seizure provision of the Fourth Amendment, nor the self-incrimination clause of the Fifth Amendment to the United States Constitution.

The court also cited State v. Gustafson, 76 Ohio St.3d 425 which declared that the administrative license suspension provisions of the 4511.19 was not a violation of the defendant’s Fourth and Fifth Amendment Rights to further rationalize its findings.

In conclusion, the court declared the enhancement provision for refusing to submit to a chemical test is constitutional and allows a court to enhance a defendant’s sentence if the following are proven beyond a reasonable doubt: (1) a DUI conviction within 20 years of the current violation, (2) operation of a motor vehicle while under the influence of alcohol or drugs, and (3) a refusal to submit to a chemical test while under arrest for the current DUI.

You will note the court did not address the issue of court’s right to enhance the sentence of a first time offender for their refusal to submit to a chemical test. This is still under debate as discussed in a prior blog.

Readers of this blog know of the very serious consequences of an OVI/DUI conviction. Direct consequences include jail, fines, suspensions, loss of commercial driving privileges, confiscation of the automobile. Indirect consequences include employment issues, insurance premium increases or loss of insurance, and professional ethics issues.

A recent federal court case points to another consequence – denial of insurance coverage. The case, Shelby County Health Care Corp. v. Majestic Star Casino, LLC Group Health Benefit Plan, 2009 FED App. 0339P (6th Cir.) involved a claim by an insured for medical coverage under his policy of insurance. The insured was involved in a traffic accident. At the time the insured was driving without a license and, at the time of their investigation, the officers checked a box on the citation indicating that alcohol consumption might be a contributing factor to the accident. The insured eventually pled no contest to the failure to have a valid drivers license but was never charged with a DUI.

As with most medical insurance policies, the following covenant was contained in the policy:

“This Plan does not cover and no benefits shall be paid for any loss caused by, incurred for or resulting from . . . . [c]harges for or in connection with an injury or illness arising out of the participation in, or in consequence of having participated in, a riot, insurrection or civil disturbance or being engaged in an illegal occupation or the commission or attempted commission of an illegal or criminal act.”

The company denied coverage claiming the insured’s failure to have a driver’s license and his possible OVI were illegal acts and therefore, were not covered. Since the term “illegal act” was not defined in the policy, the court, in a very narrow interpretation, said the “ the Plan’s illegal-act provision did not exclude coverage for [the insured’s] injuries because driving without a license and driving without insurance did not “cause” [the insured’s] accident and resulting injuries. Apparently, the court determined that 1) the contributing factor causing the accident had to be an illegal act, AND 2) it had to be a contributing factor to the incident that gave rise to the claim. Therefore, the court ordered the claim paid.

It is important to note that the court said since the insured was never charged with DUI it was not required to base its opinion on an act for which the insured was never charged. But, what would the court’s decision have been had the insured been convicted of DUI? Does DUI amount to a “criminal or illegal act?” If convicted, it could certainly be argued it was a contributing factor to the accident.

So, what do we conclude from this case? With a little tweaking, an insurance company could write an exclusionary clause that could easily exclude coverage for an accident where DUI is a contributing factor. Or, using the reciprocal argument that can be made in the Shelby case, the insurance company could argue that DUI is an illegal act AND it contributed to the incident that gave rise to the claim, and, therefore, the claim should be denied.

If you’ve read this blog you’ve heard the terms “Reasonable Suspicion” and “Investigatory Detention” many times. Both terms are used in defining a police officer’s right to stop, investigate and detain an individual for a possible OVI or other criminal matter. As I’ve explained, each court reviews the totality of the evidence presented to determine whether the officer had the right to stop individual and investigate further. The court will further determine when the investigatory stop turns into an investigatory detention for purposes of a giving the individual their Miranda warnings.

A recent Ohio court set forth, what I feel, are very good definitions for these terms. The definitions are very descriptive of the criteria needed to justify the stop, investigation and detention. The case is State v. Chadwell, 2009 Ohio 1630, 2009 Ohio App. LEXIS 1344.

The case involved a non-OVI arrest for drug possession and trafficking. Although the case does not involve an OVI arrest, it does articulate these terms well. In its synopsis, the court defines the terms as follows:

“Reasonable suspicion”justifying an investigatory stop entails some minimal level of objective justification for making a stop — that is, something more than an inchoate and unparticularized suspicion or ‘hunch,’ but less than the level of suspicion required for probable cause,” State v. Jones, 70 Ohio App.3d 554

“An appellate court determines the existence of “reasonable and articulable suspicion” by evaluating the totality of the circumstances, considering those circumstances through the eyes of the reasonable and prudent police officer on the scene who must react to events as they unfold.”

“An investigatory detention occurs when, by means of physical force or show of authority, a reasonable person would have believed that he was not free to leave or was compelled to respond to questions.”

Therefore, it is important to note when an officer does stop a driver he need not observe sufficient evidence for probable cause but merely a reasonable suspicion that the individual was driving under the influence, probable cause being a higher level of evidence than reasonable suspicion.

But once a reasonable person would believe they are not free to leave or are compelled to respond to questioning, they are now being detained necessitating that the officer outline their constitutional rights against self incrimination.