In a recent Columbus, Ohio DUI/OVI case, State v. Gervais, the driver was involved in an accident, the officer noted a strong odor of alcohol coming from the driver, the driver had bloodshot and glassy eyes, and slurred speech. The driver submitted to, and failed, all three field sobriety tests (HGN, Walk and Turn, and One Leg Stand) and failed the Breathalyzer. However, the driver did not admit to drinking any alcohol. The prosecutor had all the evidence she required, but the charges were dismissed.

The court determined that a dismissal was appropriate because the officer lacked probable cause to arrest. The court held that the officer gave incomplete instructions on the field sobriety tests and, therefore, the tests were excluded as evidence. Without the field sobriety tests, the court found that the other indicia of impairment (odor of alcohol, bloodshot and glassy eyes, etc.) were not enough to create probable cause to arrest the driver for DUI/OVI. Without probable cause to arrest, the Breathalyzer results were also excluded. This resulted in the driver’s case being dismissed.

Driver Causes Accident, Fails Field Sobriety Tests and Breathalyzer

The driver was involved in a car accident with another driver. The officer spoke with the driver and smelled alcohol. The officer testified that he believed the driver had bloodshot eyes and slurred speech. The officer also testified that he could not remember whether he had asked the driver whether he had consumed any alcohol, and the defendant testified that he did not. A second officer responded to the scene and detected a strong odor of alcohol, bloodshot and glassy eyes and slurred speech.

The Field Sobriety Tests

The second officer asked that driver to submit to field sobriety tests. These included the HGN test, Walk and Turn test, and One Leg Stand test. The defendant agreed to, and the field sobriety tests were recorded by the officer’s dash camera. However, there was no audio. Ultimately, the HGN test was not an issue at the motion hearing because the prosecutor agreed that the HGN test was not properly administered.

Walk and Turn

The officer testified as to how to administer the Walk and Turn test. The officer stated that while giving the instructions to the driver, the driver could not keep his balance, used his arms to maintain his balance, asked for the instructions to be repeated, and took the wrong number of steps. The officer concluded that the drive demonstrated four of the possible eight clues of impairment.

One Leg Stand

The officer then testified as to how to administer the One Leg Stand test. The officer told the driver to stand with his feet touching, arms at his side, and lift one foot six inches off the ground. The officer instructed the driver to point this foot so that it was parallel to the ground, and then count by 30 by thousandths. The officer then demonstrated this to the driver. The officer testified that he observed two out of a possible four clues of impairment – the driver used his arms for balance and he put his foot down during the test.

The Driver is Arrested for DUI/OVI

Following the field sobriety tests, the officer placed the driver under arrest for DUI/OVI. The driver submitted to the Breathalyzer, testing over the legal limit of 0.08. The driver was charged with DUI/OVI under ORC 4511.19(A)(1)(a), and DUI/OVI with a prohibited breath alcohol concentration under ORC 4511.19(A)(1)(d).

No Probable Cause to Arrest

Following a suppression hearing, the court held that the officer lacked probable cause to arrest the driver for DUI/OVI. Since the dash camera video did not include audio, the court was forced to rely solely on the officer’s testimony regarding the instructions for the field sobriety tests. The court determined that the officer gave incomplete instructions to the driver on the field sobriety tests. Since the prosecution could not use the field sobriety tests, the court further held that the other indicia of impairment, such as the odor of alcohol, was not enough to validate the driver’s arrest without the field sobriety tests. Since there was insufficient probable cause to arrest the driver, the Breathalyzer test was also suppressed. This resulted in all charges being dismissed.

When Do the Police Have Probable Case to Arrest a Person for DUI/OVI in Ohio?

In determining whether probable cause to arrest exists in DUI/OVI cases, the court looks at whether the officer had information that would “cause a prudent person to believe the suspect was driving under the influence of alcohol, drugs, or both.” State v. Montelauro. To determine probable cause, the court looks at the totality of the circumstances – looking at all of the facts, would a reasonable person believe that the driver was impaired?

Even without field sobriety tests, there can be probable cause to arrest for DUI/OVI if other factors are present. In State v. Belmonte and State v. Homan, the courts found that the officers had probable cause to arrest, even though the field sobriety tests were excluded, when other factors were present. These include:

• The driver caused an accident;
• The officer observed erratic driving;
• The officer detected a strong odor of alcohol coming from the driver;
• An admission by the driver that he or she was recently drinking alcohol;
• Other indicia of impairment, such as bloodshot and glassy eyes, slurred speech, and difficulty walking.

The court, however, noted one significant difference between those cases and this one – that the driver in this case did not admit to drinking. This was a significant factor to the court in it’s decision to hold that the officer lacked probable cause to arrest. The prosecutor argued that there was probable cause to arrest because:

• The driver caused a car accident;
• The officer testified that he smelled a strong odor of alcohol emanating from the driver; and
• The officer testified that the driver had bloodshot and glassy eyes, slurred speech, and slow responses.

However, since the driver did not admit to drinking alcohol, and the field sobriety tests were excluded as evidence, the court held that the officer lacked probable cause to arrest.

What This Case Means for You?

So, what does this mean if you are arrested for DUI/OVI in Columbus, Ohio? While you should never submit to field sobriety tests or the Breathalyzer, even if you do, under no circumstances should you ever admit to drinking alcohol. The first thing that law enforcement typically does after they pull you over for suspected DUI/OVI will be to ask you whether you have been drinking and how much. Given the case above, it is particularly important that you not make any admission to drinking or how much you had to drink to the officer.

Columbus and Delaware, Ohio DUI/OVI Defense Attorney

If you have been charged with DUI/OVI in Columbus or Delaware, Ohio, contact Johnson Legal, LLC and speak with an experienced criminal defense 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.