In a recent case from the 9th District Court of Appeals in Ohio, State v. High, the court held that the police cannot ask a driver to step out of his car and perform field sobriety tests if an officer only observes the odor of alcohol and the driver admits to drinking a couple of beers that day.
In High, a charge of physical control was dismissed because the court found that the officer lacked reasonable suspicion to require the driver to submit to field sobriety tests. Require many believe that it is illegal to drink and drive, that is simply not the state of the law in Ohio. Drinking and driving is not illegal – only driving while being impaired is illegal.
Thus, absent further indicia of impairment, the officer cannot require a driver to submit to field sobriety tests, or arrest the driver for DUI / OVI or physical control, based solely on the odor of alcohol and an admission to consuming alcohol.
Officer Smells Alcohol Coming from the Vehicle
In High, an officer was dispatched to a report of a suicidal individual. The officer responded and found High sitting in the driver’s seat of his vehicle with the engine running. An officer spoke with High and asked him to turn the engine off.
High cooperated, but remained in his vehicle. Another officer, detecting the odor of alcohol coming from the vehicle, asked High if he had anything to drink that day. High admitted to consuming “a few beers” and the officer asked High to exit his vehicle.
The officer administered field sobriety tests, including the Horizontal Gaze Nystagmus, Walk and Turn and One Leg Stand tests. The officer observed clues on each test and arrested High. High submitted to a breathalyzer test, which found that High was over the legal limit.
High was charged with physical control, in violation of R.C. 4511.194(B)(1) and (B)(2). High, through his attorney, filed a motion to suppress. The court, after a hearing, suppressed the evidence gathered as a result of the stop and the prosecution appealed.
Officer Must Be Able to Point to Specific Clues of a Driver’s Impairment in Order to Administer Field Sobriety Tests in Ohio
Law enforcement is not required to establish probable cause to administer field sobriety tests in Ohio. Instead, the officer need only have reasonable suspicion of criminal activity. State v. Slates. The officer must observe clues that lead him or her to believe that the driver is impaired by alcohol or drugs. Only then may the officer ask the driver to exit their vehicle and perform field sobriety tests. State v. Osburn.
The officer in High stated that he believed that he had reasonable suspicion to require High exit his vehicle and perform field sobriety tests because of the smell of alcohol coming from High and High’s admission to consuming alcohol. The officer did not indicate any other indicia of impairment, such as glassy or bloodshot eyes, slurred speech, erratic driving or difficulty with dexterity.
Odor of Alcohol and Admission to Drinking Insufficient to Establish Reasonable Suspicion to Investigate for DUI / OVI in Ohio
A mild odor of alcohol can provide reasonable suspicion to justify field sobriety tests when combined with other factors, such as a traffic violation, bloodshot eyes, and an admission to consuming alcohol. State v. Tomko.
However, the only factors present in High was the smell of alcohol and an admission to recent alcohol consumption. There was no evidence presented as to any traffic violation, bloodshot or glassy eyes, erratic driving, slurred speech, or any other indicia of impairment.
It is only a crime to be in physical control of a vehicle while under the influence. R.C. 4511.194(B)(1). The fact that High had been drinking was insufficient to subject him to field sobriety testing without some further indicia of impairment.
The 9th District Court of Appeals held that the State failed to produce enough evidence to show that the officer possessed “specific and articulable facts indicating that High was committing a criminal act. See Osburn.
Columbus and Delaware, Ohio DUI / OVI Attorney
If you have been charged with DUI / OVI in Columbus or Delaware, Ohio, contact Johnson Legal, LLC and speak with an experienced Columbus and Delaware, Ohio DUI / OVI attorney. Attorney David Johnson of Johnson Legal, LLC will discuss your case and assist you in fighting the charges. Call (614) 987-0192 or send an email to schedule a consultation regarding your DUI / OVI case.
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