Often, a person who has been detained (Terry stop, traffic stop) is “in custody ” for Miranda purposes before a formal arrest occurs. That is important because the procedural safeguards adopted by Miranda become necessary once a defendant is taken into custody. Continue reading
In cases where the facts make it appropriate, the following sets forth a framework for excluding evidence of a refusal as proof of guilt in an OVI case and as proof of the element of refusal in an OVI-refusal with a prior OVI in the past 20 years case. Continue reading
State v. Homan, 89 Ohio St.3d 421, R.C. 4511.19(D)(4), and State v. Schmitt, 101 Ohio St.3d 79 piece together when the state can introduce evidence (through testimony and video) concerning the results of standardized field sobriety tests (SFST’s) in any criminal prosecution for OVI. Simply stated, the standard for consideration of the results on the issue of probable cause for arrest or admissibility of the results at trial is “substantial compliance.” Specifically, the state must show by clear and convincing evidence that the officer administered the test(s) in substantial compliance with the testing standards (contained in NHTSA’s DWI Detection and Standardized Field Sobriety Testing Manual) for any reliable, credible, and generally accepted field sobriety tests (the HGN, Walk And Turn and One Leg Stand) that were in effect at the time the tests were administered (currently, the Manual revised in February, 2018). As it relates to trial, upon such a showing the officer may testify concerning the results, and the prosecutor may introduce the results as evidence if the testimony or evidence is otherwise admissible under the Rules of Evidence. If the court admits the testimony or evidence the trier of fact shall give it whatever weight it considers to be appropriate (and a jury instruction should be given which informs the jurors that they determine the weight, and does not invade the province of the jury to be the sole fact finder). Continue reading
One of the primary concerns of a person who has been arrested for OVI is the administrative license suspension (ALS) imposed against the driver’s license for refusing or “failing” a chemical test. The ALS is authorized under R.C. 4511.191, Ohio’s “Implied Consent” statute. This post is meant to generate some ideas, through the use of advocacy and the law, for successfully appealing an ALS. Continue reading
Challenging Admissibility and Weight of BAC and SFST Results
Just because the results of a breath or blood alcohol concentration test and/or the results of Standardized Field Sobriety Tests (SFST’s) are determined to be in substantial compliance under their respective statutory exclusionary rules does not mean that the admissibility of such results cannot be challenged on other grounds, nor does it preclude an attack on the weight and credibility of that evidence if it is admitted. Continue reading