Illegal Police Stops

Phase Two: The Personal Contact Phase

March 25th, 2014

personal contact phaseAn officer’s decision to arrest for DUI involves three steps: observing the vehicle in motion, observing the driver during a personal contact phase, and administering field sobriety tests.  Evidence is collected at each stage.  If, after conducting all three phases, the officer believes probable cause exists that you are impaired, you will then be arrested.  Probable cause is a flexible, common-sense standard. It merely requires that the facts available to the officer would ‘warrant a man of reasonable caution in the belief,’ Carroll v. United States, 267 U.S. 132, 162 (1925), that you are impaired; it does not demand any showing that such a belief be correct or more likely true than false.  A ‘practical, nontechnical’ probability that incriminating evidence is involved is all that is required. Brinegar v. United States, 338 U.S. 160, 176 (1949).”

To collect evidence during the personal contact phase, an officer is trained to:

  1. observe and interview the driver; and
  2. observe the driver’s exit and walk when the driver is asked to step from the vehicle.

When observing and interviewing the driver, NHTSA  offers the following clues for the officer to observe and record at this point in the stop:

  • ” Sight-bloodshot eyes, soiled clothing, fumbling fingers, alcohol containers, drugs or drug paraphernalia, bruises, bumps or scratches, unusual actions
  • ” Hearing-slurred speech, admission of drinking, inconsistent responses, abusive language, unusual statements
  • ” Smell-alcoholic beverages, marijuana, cover up odors like breath sprays, unusual odors

It is up to you to prevent an over-eager officer from determining that your actions are caused by alcohol impairment and not normal day-to-day activities.  One way to do this is to have your documents in order.  No matter how dexterous, some officers will observe your attempt to withdraw your paperwork as inadequate.  We routinely see reports that say:

  • fumbled for license;
  • was slow and deliberate in looking for insurance;
  • unable to produce license and registration;
  • could not get his/her license from wallet;

While these “personal contact phase” observations may not be determinative of impairment, they go a long way in establishing the officer’s decision to place you under arrest for operating a vehicle impaired.  Here is what you can do during the personal contact phase to avoid an unnecessary arrest.

Here is a common sense tip:  just have your license, insurance information and vehicle registration in a place that makes them easily accessible.  Prior to the officer’s approach, have these items close at hand, so that you can provide them upon request.  If you are arrested, you attorney will make use of the fact that you produced these documents quickly.  Practice taking your license out of your wallet.  If it takes more than five seconds, make it easier to get to.  Put you license and insurance information in an envelope near the drivers compartment.  Officers are understandably concerned about their safety and will get suspicious if you dive toward the glove compartment prior to their vehicle approach.

At the conclusion of the personal contact phase, both you and the officer have a decision to make.  The officer must determine if he or she is going to remove you from the vehicle to take standardized field sobriety tests, and you must determine if you will take the tests.  As DUI attorney Bruce Kapsack quips, “If they ask you to get out of the car, they’ve already made their decision, so why give them more evidence to use against you?”  Taking practical steps to be prepared for an officer hell-bent on arresting people for drunk driving, can save you the embarrassment and expense of a DUI arrest.

Attorney Charles M. Rowland II dedicates his practice to defending the accused drunk driver in the Miami Valley and throughout Ohio.  He has the credentials and the experience to win your case and has made himself Dayton’s choice for drunk driving defense. Contact Charles Rowland by phone at (937) 318-1384 or toll-free at 1-888-ROWLAND (888-769-5263). If you need assistance after hours, call the 24/7 DUI Hotline at (937) 776-2671.  You can have DaytonDUI at your fingertips by downloading the DaytonDUI Android App or have DaytonDUI sent directly to your mobile device by texting DaytonDUI (one word) to 50500.  Follow DaytonDUI on Facebook, @DaytonDUI on Twitter, YouTube, Tumblr, Pheed and Pintrest or get RSS of the Ohio DUI blog.  You can email CharlesRowland@DaytonDUI.com or visit his office at 2190 Gateway Dr., Fairborn, Ohio 45324.  “All I do is DUI defense.”

Find more about the personal contact phase at the following links:

FairbornDaytonSpringfieldKetteringVandaliaXeniaMiamisburgSpringboro,Huber HeightsOakwoodBeavercreekCenterville

What is Probable Cause in an Ohio DUI Case?

January 21st, 2014

probable cause

To be arrested for drunk driving in Ohio, all that is needed is an law enforcement officer’s determination that “probable cause” exists to believe that you are driving while impaired.  A determination of probable cause need only be supported by the officer’s observations of indicia of alcohol consumption and operation of a motor vehicle.  In determining whether or not probable cause for the arrest exists a court will look at facts such as:

  •  (1) the time and day of the stop (Friday or Saturday night as opposed to, e.g., Tuesday morning);
  • (2) the location of the stop (whether near establishments selling alcohol);
  • (3) any indicia of erratic driving before the stop that may indicate a lack of coordination (speeding, weaving, unusual braking, etc.);
  • (4) whether there is a cognizable report that the driver may be intoxicated;
  • (5) the condition of the suspect’s eyes (bloodshot, glassy, glazed, etc.);
  • (6) impairments of the suspect’s ability to speak (slurred speech, overly deliberate speech, etc.);
  • (7) the odor of alcohol coming from the interior of the car, or, more significantly, on the suspect’s person or breath;
  • (8) the intensity of that odor, as described by the officer (“very strong,” “strong,” “moderate,” “slight,” etc.);
  • (9) the suspect’s demeanor (belligerent, uncooperative, etc.);
  • (10) any actions by the suspect after the stop that might indicate a lack of coordination (dropping keys, falling over, fumbling for a wallet, etc.); and
  • (11) the suspect’s admission of alcohol consumption, the number of drinks had, and the amount of time in which they were consumed, if given.

The experience and credibility of the arresting officer also serves as information that a court will use to make its probable cause decision. See State v. Evans (11th Dist 1998), 127 Ohio App.3d 56.  The Court will also rely upon the officer’s interpretation of your performance on the Standardized Field Sobriety Tests given at roadside.  The National Highway Traffic and Safety Administration (NHTSA) has determined that three tests are specific for alcohol intoxication: the HGN (horizontal gaze nystagmus), the walk & turn test and the one leg stand test. This three-test battery are now referred to as the “standardized field sobriety tests.”

In State v. Homan (2000), 89 Ohio St.3d 421 the court stated,

“In determining whether the police had probable cause to arrest and individual for DUI, we consider whether, at the moment of arrest, the police had sufficient information, derived from a reasonably trustworthy source of facts and circumstances, sufficient to cause a prudent person to believe that the suspect was driving under the influence.  In making this determination, we will examine the “totality” of facts and circumstances surrounding the arrest.”

If the totality of the facts and circumstances do not establish probable cause, then no arrest should have taken place.  If the arrest was not proper, any resulting chemical test becomes irrelevant.  It is important that you fight the probable cause determination with an experienced Ohio DUI attorney. 

Ohio DUI Attorney Charles M. Rowland II dedicates his practice to defending the accused drunk driver in the Miami Valley and throughout Ohio.  He has the credentials and the experience to win your case and has made himself Dayton’s choice for drunk driving defense. Contact Charles Rowland by phone at (937) 318-1384 or toll-free at 1-888-ROWLAND (888-769-5263). If you need assistance after hours, call the 24/7 DUI Hotline at (937) 776-2671.  You can have DaytonDUI at your fingertips by downloading the DaytonDUI Android App or have DaytonDUI sent directly to your mobile device by texting DaytonDUI (one word) to 50500.  Follow DaytonDUI on Facebook, @DaytonDUI on Twitter, YouTube, Tumblr, Pheed and Pintrest or get RSS of the Ohio DUI blog.  You can emailCharlesRowland@DaytonDUI.com or visit his office at 2190 Gateway Dr., Fairborn, Ohio 45324.  “All I do is DUI defense.”

 Find information on probable cause and other city-specific info at the following links:

FairbornDaytonSpringfieldKetteringVandaliaXeniaMiamisburgSpringboro,Huber HeightsOakwoodBeavercreekCenterville 

 

 

 

The Erosion of the Fourth Amendment

January 9th, 2014

Fourth AmendmentThe Fourth Amendment to the Constitution was a response to the British government’s abuse of writs of assistance.  These writs served as a general type of search power allowing British soldiers to go onto any property without cause.  Any place could be searched at the whim of the holder, and searchers were not responsible for any damage they caused, thereby putting anyone who held such a writ above the law.  The Fourth Amendment engrained a unique principle of free people that a person’s home and property were beyond the scope of government officials unless a judicially approved warrant was issued.  Furthermore, no warrant could issue unless it was supported by probable cause.  The Fourth Amendment also encapsulated the idea of the “Castle Doctrine” (that was symbolically adopted in the Third Amendment), limiting the government’s ability to oppress its citizens property and land.  Sir Edward Coke, in Semayne’s case (1604), famously stated: “The house of every one is to him as his castle and fortress, as well for his defence against injury and violence as for his repose.” Semayne’s Case acknowledged that the King did not have unbridled authority to intrude on his subjects’ dwellings but recognized that government agents were permitted to conduct searches and seizures under certain conditions when their purpose was lawful and a warrant had been obtained.

The United States Supreme Court enforced the principles of the Fourth Amendment via the “exclusionary rule.”  That rule made evidence obtained without a proper warrant inadmissible against the defendant at a criminal trial.  See Weeks v. United States (1914), Silverthorne Lumber Co v. United States (1920) and Nardone v. United States (1939).  It is from the Nardone decision that we get Justice Frankfurter’s famous labeling of the evidence as “fruit of the poisonous tree.”  In 1961 the Supreme Court extended the Fourth Amendment’s exclusionary rule to the States in Mapp v. Ohio (1961).  The Court reasoned that the rule’s function “is to deter—to compel respect for the constitutional guaranty in the only effectively available way—by removing the incentive to disregard it.” See Elkins.

The culture wars of the 1960′s led to a very severe and determined opposition to the Fourth Amendment who wanted to exclude and limit its application.  By the 1980s, critics saw the “War on Drugs”  as a means to an end for such a purpose. Starting in 1974 the Court ruled that grand juries could use illegally obtained evidence in grand jury proceedings. See United States v. Calandra (1974).  The Court reasoned that  “the damage to that institution from the unprecedented extension of the exclusionary rule outweighs the benefit of any possible incremental deterrent effect.”  The 1980s saw a more bold approach to limiting the Fourth Amendment.  In United States v. Leon, the Court, applying the “good faith” rule, ruled that evidence seized by officers relying in good faith on a warrant was still admissible, even though the warrant was later found to be defective.  INix v. Williams the Court ruled that “fruit of the poisonous tree” evidence could still be introduced if a prosecutor could demonstrate that it would have been an “inevitable discovery” of legitimate investigation. In Segura v. United States, the Court ruled that evidence illegally found without a search warrant is admissible if the evidence is later found and legally seized based on information independent of the illegal search.  The 1990s and 2000s saw further erosion.  Arizona v. Evans (1995) and Herring v. United States (2009), ruled that the exclusionary rule does not apply to evidence found due to negligence regarding a government database, as long as the arresting police officer relied on that database in “good faith” and the negligence was not pervasive. In Davis v. United States (2011), the Court ruled that the exclusionary rule does not apply to a Fourth Amendment violation resulting from a reasonable reliance on binding appellate precedent.

Amie Stepanovich, director of the domestic surveillance project at the Electronic Privacy Information Center, offers three ways the government has attempted to erode Fourth Amendment protections.

  1. They’ve worked around it. In 1979, the Supreme Court denied constitutional protection to information voluntarily turned over to third parties. The government argues this permits warrantless collection of, among other things, information about Web visits, phone calls, location, and banking data.
  2. They’ve limited its scope. The Supreme Court has said that Fourth Amendment protections don’t apply in all places or at all times. For example, U.S. borders have become, practically speaking, Constitution-free zones. And the Department of Homeland Security has decided that the border consists of all land and sea boundaries, and extends out for 100 miles, placing the majority of the U.S. population within that region.
  3. They’ve limited its application. The government argues that nothing that occurs in public is actually a search. Public-space surveillance has been traditionally limited by available resources. But new technology like GPS tracking makes it easy to surreptitiously monitor a person’s location and activities in public.
 This author would argue that the only way to regain the ground we have lost is to strengthen the freedoms of the Fourth Amendment in the States.  It will take a 40-year effort to stem the tide.  It will take overcoming the fear of another terrorist attack, the fear of drugs and the fear of each other – but it can be done.  With the vast resources available to the government in this age of surveillance, the Fourth Amendment is more important than ever.

Marked Lanes Violations & Traffic Stops

August 28th, 2013

marked lanesWhen can a police officer make a stop for a marked lanes violation?

In State v. Houck, 2011-Ohio-6359, Ohio’s Fifth Appellate District considered the legal standards required to stop a person for a marked lanes violation. See O.R.C. 4511.33

“In Ohio, when a driver commits only a de minimis marked-lanes violation, there must be some other evidence to suggest impairment before an officer is justified in stopping the vehicle. See State v. Gullett (1992), 78 Ohio App.3d 138, 145, 604 N.E.2d 176, 180–181. In Gullett, the Fourth District Court of Appeals concluded that the mere crossing of an edge line on two occasions did not constitutionally justify the stop. Similarly, this court has held that where there is no evidence of erratic driving, ‘other than what can be considered as insubstantial drifts across the lines,’ there is not sufficient evidence to justify an investigative stop. State v. Drogi (1994), 96 Ohio App.3d 466, 469, 645 N.E.2d 153, 155. However, as discussed above, under certain circumstances, an incident or incidents of crossing lines in the road may give a police officer reasonable suspicion to stop a vehicle, depending on those factors that indicate the severity and extent of such conduct. Id.; State v. Johnson, 105 Ohio App.3d at 40, 663 N.E.2d at 677.”

If you are arrested on suspicion of drunk driving, talk to your attorney about challenging your arrest based on the above marked lanes (O.R.C. 4511.33) violation.  If you are able to demonstrate that there was no “reasonable and articulable suspicion” for the stop, your stop is illegal and may lead to the suppression of evidence.

Ohio DUI attorney Charles M. Rowland II dedicates his practice to defending the accused drunk driving in Dayton and throughout the Miami Valley.  He has been featured in Car & Driver and Time Magazine as a leader in his field and has the credentials and experience necessary to win your Ohio OVI case.

Contact Charles M. Rowland II at (937) 318-1384 or toll-free at 1-888-ROWLAND [888-769-5263].  Stay up to date on Ohio OVI law at our Facebook page. You can follow @DaytonDUI on Twitter, Tumblr, Pintrest and YouTube.  Put DaytonDUI at your fingertips by downloading the DaytonDUI Android app or text DaytonDUI (one word) to 50500 to get information sent directly to your cell phone. For city specific information, please click on the links below:

Dayton, Springfield, Beavercreek, Centerville, Miamisburg, Xenia, Vandalia, Huber Heights, Fairborn, Oakwood, Piqua, Troy, Springboro, Franklin and Lebanon.

Ohio DUI Law And The Portable Breath Test

August 2nd, 2013

handcuffsIn State v. Shuler , 168 Ohio App.3d 183, 2006-Ohio-4336, the Ohio Supreme Court took up the issue of whether a portable breath test device (hereinafter ‘PBT’) can be used as evidence in a drunk driving prosecution.  The court found that,

PBT devices are not among those instruments listed in Ohio Adm.Code 3701-53-02 as approved evidential breath-testing instruments for determining the concentration of alcohol in the breath of individuals potentially in violation of R.C. 4511.19. PBT results are considered inherently unreliable because they “may register an inaccurate percentage of alcohol present in the breath, and may also be inaccurate as to the presence or absence of any alcohol at all.” See State v. Zell (Iowa App. 1992), 491 N.W.2d 196, 197.

PBT devices are designed to measure the amount of certain chemicals in the subject’s breath. The chemicals measured are found in consumable alcohol, but are also present in industrial chemicals and certain nonintoxicating over-the-counter medications. They may also appear when the subject suffers from illnesses such as diabetes, acid reflux disease, or certain cancers. Even gasoline containing ethyl alcohol on a driver’s clothes or hands may alter the result. Such factors can cause PBTs to register inaccurate readings, such as false positives. See Tebo, New Test for DUI Defense: Advances in Technology and Stricter Laws Create Challenges for Lawyers, Jan. 28, 2005, www.duicentral.com/aba_journal/.

This lack of evidential reliability provides a basis for excluding PBT results from admissibility at trial. See Elyria v. Hebebrand (1993), 85 Ohio App.3d 141, 619 N.E.2d 445; State v. Kerns (March 30, 1998), Van Wert App. No. 15-97-8, 1998 WL 142384.

You would assume given the strong language that the PBT is unreliable, you would think the court would not allow the device to be used to establish probable cause for an arrest.  Not so.  In the same case the Supreme Court reiterated the rule that the PBT can be used to determine probable cause to arrest a person for DUI.

In State v. Coates, Athens App. No. 01CA21, 2002-Ohio-2160, ¶54, we recognized that we have previously allowed the results of a PBT as a valid factor upon which to base probable cause. We recently recognized our adherence to this practice in State v. Gunther, Pickaway App. No. 04CA25, 2005-Ohio-3492, at ¶23. Our openness to employing PBT results as a factor to be used in determining probable cause, however, has never extended into a practice of admitting PBT results as evidence at trial.

Is this position not amazingly inconsistent?  If we change the PBT to another discounted scientific method like using a psychic, it proves the point.  We can all agree that mediums and psychics are frauds that prey upon the vulnerability of their victims.  Unfortunately, some law enforcement agencies have been duped (usually by desperate family members) into using psychics in unsolved murder cases.  It is obvious that a psychic could not be used against a criminal defendant to establish guilt… that would be crazy.  Is it not just as crazy to assume we should rely upon the psychic to establish probable cause for an arrest?  Imagine staying in jail based awaiting trial based on the evidence given by an unreliable psychic.  It is just as bad to be arrested and put in jail based on the evidence of a faulty, unreliable PBT device?

DUI attorney Charles M. Rowland II dedicates his practice to defending the accused drunk driver in DaytonSpringfieldKetteringVandaliaXeniaMiamisburg, Huber Heights,Beavercreek, and throughout Ohio.  He has the credentials and the experience to win your case and has made himself the Miami Valley’s choice for DUI defense.  Contact Charles Rowland by phone at 937-318-1DUI (937-318-1384), 937-879-9542, or toll-free at 1-888-ROWLAND (888-769-5263).  For after-hours help contact our 24/7 DUI HOTLINE at 937-776-2671.  For information about Dayton DUI sent directly to your mobile device, text DaytonDUI (one word) to 50500.  Follow DaytonDUI on Twitter @DaytonDUI or Get Twitter updates via SMS by texting DaytonDUI to 40404. DaytonDUI is also available on Facebook,www.facebook.com/daytondui and on the DaytonDUI channel on YouTube.  You can also email Charles Rowland at: CharlesRowland@DaytonDUI.comor write to us at 2190 Gateway Dr., Fairborn, Ohio 45324.