Posts Tagged ‘reasonable and articulable suspicion’

The Ohio “Clear and Convincing Evidence” Standard

February 27th, 2014

clear and convincing evidence

Clear and Convincing Evidence is required for the standardized field sobriety tests to be admitted. Ohio Revised Code 4511.19(D)(4)(b) sets forth the standards for admissibility of the results of field sobriety tests in OVI (drunk driving) prosecutions.  See State v. Bozcar, 113 Ohio St. 3d 148, 2007-Ohio-1251, 863 N.E.2d 115 (2007).  In order for the tests to be admissible, the State must demonstrate:

  1. By clear and convincing evidence.
  2. The Officer administered the tests in substantial compliance.
  3. The testing standards for any reliable, credible, and generally accepted test.
  4. Including, but not limited to, the standards set by NHTSA.

The only guidance provided for determining the meaning of “substantial compliance” has come from State v. Burnside, 100 Ohio St. 3d 152, 2003-Ohio-5372 (2003), wherein the court indicated that errors that are clearly “de minimus” or “minor procedural deviations” are not substantial.  Thus, the State must set forth the testing standards, offer some testimony that the testing standards have been accepted and that the officer has substantially complied.  If the State fails to introduce testimonial or documentary evidence of the standards (most likely via the NHTSA training manual), then they have not met this burden. See Village of Gates Mills v. Mace, 2005-Ohio-2191 (Ohio Ct. App. 8th Dist., Cuyahoga County), wherein the State did not meet this burden despite the Court having its own copy of the manual.

Clear and convincing evidence  is defined  in In re Chappell (1938), 33 N.E.2d 393, 397, as “…that degree of proof which will produce in the mind of the court a firm belief or conviction of the truth of the charges and specifications sought to be established. Cross v. Ledford (1954), 161 Ohio St. 469, paragraph 3 of the syllabus: “Clear and convincing evidence is that measure or degree of proof which is more than a mere ‘preponderance of the evidence,’ but not to the extent of such certainty as is required by ‘beyond a reasonable doubt’ in criminal cases, and which will produce in the mind of the trier of facts a firm belief or conviction as to the facts to be established.” Also see Lansdowne v. Beacon Journal Publishing Co. (1987), 32 Ohio St. 3d 176, 180-181; In re Meyer (1994), 98 Ohio App. 3d 189, 195; Cincinnati Bar Assn. v. Massengale (1991), 58 Ohio St. 3d 121, 122; In re Adoption of Holcomb (1985), 18 Ohio St. 3d 361, 368; In re Brown (1994), 98 Ohio App. 3d 337, 342-343.

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 email CharlesRowland@DaytonDUI.com or visit his office at 2190 Gateway Dr., Fairborn, Ohio 45324.  “All I do is DUI defense.”

Find information on clear and convincing evidence and other city-specific info at the following links:

FairbornDaytonSpringfieldKetteringVandaliaXeniaMiamisburgSpringboro,Huber HeightsOakwoodBeavercreekCenterville

What Are (And What Are Not) Standardized Field Sobriety Tests

September 25th, 2013

standardized field sobriety testsThe dream of implementing Standardized Field Sobriety Tests has long been a goal of law enforcement.  Extensive government testing was begun in the 1970′s to determine a scientifically valid way of helping police officers detect intoxication in drivers under suspicion of drunk driving.  Prior to this undertaking, officers were doing their best to gather evidence of drunk driving, or simply not arresting for the offense due to the difficulty of proving impairment in court.  Some more ingenious tests included throwing coins on ground; if the suspect could pick them up without falling over, they must be sober.  Other popular tests that officers used included:

  • The Rhomberg stationary balance test wherein the driver stands, feet together, and leans the head back to look up at the sky while holding their arms out to the side;
  • An alphabet test where the officer asks the subject to say the alphabet from D to P (some officers asked a subject to say the alphabet backward);
  • The finger-to-nose test: this requires the driver might to close his or her eyes and bring the finger around to touch the nose; and/or
  • The hand-pat test: the driver is asked to extend a hand in front, palm upwards. The other hand is then placed on top of the first hand, palm downwards. The driver then ‘pats’ the lower hand with the upper hand by rotating it, so that first the lower hand is patted with the palm of the upper hand and then with the back of the upper hand;

The problem was that no science supported these tests and the manner of administering the tests fell far short of “Standardized Field Sobriety Tests.”  The National Highway Traffic and Safety Administration (NHTSA) was tasked with determining which tests, if any, could be correlated with impairment by alcohol.  After extensive testing, NHTSA determined that three tests were 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.”

All other tests were eliminated.  NHTSA did acknowledge that, while there is a place for using distracting questions, confusion or divided-attention tasks, it cannot be called “scientific” for purposes of in-court testimony.  The current version of the NHTSA manual used to instruct law enforcement throughout the United States allows for non-standardized tests to be a part of the officer’s determination in establishing the lower legal standard of reasonable and articulable suspicion.  The officer uses the information from these tests to determine if the suspect should be removed from the vehicle for standardized field sobriety tests.

If, however, the officer is using the non-standardized field sobriety tests to establish probable cause for an OVI arrest, he or she is on a faulty scientific and legal footing.  Your DUI lawyer will challenge these tests as not probative of intoxication and that they are irrelevant for purposes of determining impairment.  At least one case, Rocky River v. Horvath, 2002 WL 538755 (Ohio Ct. App. 8th Dist. Cuyahoga 2002) has decided that these non-standardized tests are improper because they have no standardized application and they have not been approved by NHTSA. [Note: this opinion was written by now-Supreme Court Justice Terrence O'Donnell].  The Second District Court of Appeals has ruled that non-standardized tests can come in under the totality of the circumstances used to reach a probable cause determination. State v. Rajehel, 2003-Ohio-3975.  The Ohio Supreme Court has ruled that the tests may be used as lay evidence of intoxication. Brooklyn Hts. v. Yee, 2009-Ohio-4552.

You need the skills of an experienced attorney who can properly challenge the reasonable suspicion and probable cause determinations made by the arresting officer.  Charles M. Rowland II has been trained in the latest NHTSA Standardized Field Sobriety Test methods (Walden & Platt, March 2010).  He is just as qualified as law enforcement to administer and evaluate the performance of a subject on the standardized three-test battery and to challenge non-scientific  “stupid-human tricks” that an officer may employ.

OVI 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 Standardized Field Sobriety Tests information and other city-specific info at the following links:

FairbornDaytonSpringfieldKetteringVandaliaXeniaMiamisburgSpringboro,Huber HeightsOakwoodBeavercreekCenterville 

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.

License Plate Light Not Illuminated (O.R.C. 4513.05)

April 24th, 2013

Neon sign

In Ohio, it is illegal to operate a motor vehicle without a white light illuminating the rear registration plate. See O.R.C. 4513.05.  This law is often used as a pretext for a traffic stop which allows the officer to come into contact with the motorist.  Here is a full text of the law. 

4513.05 Tail lights and illumination of rear license plate.

(A) Every motor vehicle, trackless trolley, trailer, semitrailer, pole trailer, or vehicle which is being drawn at the end of a train of vehicles shall be equipped with at least one tail light mounted on the rear which, when lighted, shall emit a red light visible from a distance of five hundred feet to the rear, provided that in the case of a train of vehicles only the tail light on the rearmost vehicle need be visible from the distance specified.

Either a tail light or a separate light shall be so constructed and placed as to illuminate with a white light the rear registration plate, when such registration plate is required, and render it legible from a distance of fifty feet to the rear. Any tail light, together with any separate light for illuminating the rear registration plate, shall be so wired as to be lighted whenever the headlights or auxiliary driving lights are lighted, except where separate lighting systems are provided for trailers for the purpose of illuminating such registration plate. 

(B) Whoever violates this section is guilty of a minor misdemeanor.

While this may seem like a trifling reason for a traffic stop, most states have similar laws.  The justification for the law is that a passerby or pedestrian who sees a car should be able to identify the car by its license plate.  Arguing that your car has reflective license plates is not a defense.  Once the officer comes in contact he can begin a full investigation for impaired driving if he establishes reasonable and articulable suspicion to continue the detention.

Why a white light?  Law enforcement does not want the light to be able to change the color of the license plate and thus enhance the possibility of misidentification of a vehicle.  We have also seen cases of individuals being pulled over due to neon flashing lights on their license plates.  Ohio Revised Code, section 4513.17 prohibits flashing lights on motor vehicles with the exception of emergency vehicles, turn signals, and hazard flashers.Lights must not rotate, oscillate, or flash, but state law does not prohibit the use of colored neon lights under your car as long as they do not interfere or blind other drivers.  As long as the neon lights are less than 300 candle power they are not in violation of any State law. If the lights are more than 300 candle power they must be directed to strike the pavement the vehicle sets upon at a distance of no more than 75 feet. The lights can not exceed 500 candle power. Colored lights, such as neon lights around a license plate, could be illegal if the light illuminates the plate and changes the colors of the plate. State law requires a white light to illuminate the rear license plate.”

If you have questions regarding the information provided above, please contact Charles M. Rowland II by phone at 937-318-1DUI (937-318-1384), 937-879-9542, or toll-free at 1-888-ROWLAND (1-888-769-5263).For after-hours help contact our 24/7 DUI HOTLINE at 937-776-2671.  Immediate help is available by filling out the CONTACT form on any of these pages. For information about Dayton DUI sent directly to your mobile device, text DaytonDUI (one word) to 50500.  Follow DaytonDUI on Twitter at www.Twitter.com/DaytonDUI or Get Twitterupdates via SMS by texting follow DaytonDUI to 40404. DaytonDUI is also available on Facebook and you can access updates by becoming a fan of Dayton DUI/OVI Defense.  You can also email Charles Rowland at: CharlesRowland@DaytonDUI.com or write to us at 2190 Gateway Dr., Fairborn, Ohio 45324

Nonstandardized Field Sobriety Tests

April 12th, 2013

Ohio has adopted the three-test field sobriety protocol as set forth in the National Highway Traffic Safety Administration (NHTSA) manual for training law enforcement officers.  The three tests adopted by NHTSA all survived scientific scrutiny as being indicative of impairment.  The tests are: (1) horizontal gaze nystagmus, a test of the subject’s eyes; (2)  walk & turn; (3) one-leg-stand.  The officer is trained to administer the tests in a standardized fashion and record “clues” of impairment as evidenced by the subject’s performance on the tests.

Often, you will encounter a circumstance where the officer employs an non-standardized field sobriety test.  These tests may include nonscientific “techniques”, some of which are described in the NHTSA manual, and can include a finger dexterity test, an alphabet test, a counting test or some other form of confusing coordination test.  Some jurisdictions still employ a thoroughly discredited test which requires the subject to tilt their head back and touch the tip of his finger to the tip of his nose.

The first step in challenging the officers decision to employ non-standardized tests is to determine why the officer is employing the tests.  Ohio has set forth eleven (11) factors that courts consider in determining whether or not the officer has established reasonable and articulable suspicion of drunk driving sufficient to request that the suspect step from the car.  See State v. Evans, citation omitted.  It is appropriate pursuant to the NHTSA manual to employ the above-described “techniques” at this phase of the officer’s investigation.  Your DUI attorney will know how to use cross examination to establish that there were omissions in the officers investigation, or that the officer lacked the legal standard necessary to ask you to step from the car.

If, however, the officer is using the tests to establish probable cause for an OVI arrest, he or she is on a faulty scientific footing.  Your DUI lawyer will challenge these tests as not probative of intoxication and that they are irrelevant for purposes of determining impairment.  At least one case, Rocky River v. Horvath, 2002 WL 538755 (Ohio Ct. App. 8th Dist. Cuyahoga 2002) has decided that these non-standardized tests are improper because they have no standardized application and they have not been approved by NHTSA. [Note: this opinion was written by now-Supreme Court Justice Terrence O'Donnell].  The Second District Court of Appeals has ruled that non-standardized tests can come in under the totality of the circumstances used to reach a probable cause determination. State v. Rajehel, 2003-Ohio-3975.  The Ohio Supreme Court has ruled that the tests may be used as lay evidence of intoxication. Brooklyn Hts. v. Yee, 2009-Ohio-4552.

If you find yourself needing the assistance of a qualified Ohio DUI lawyer, contact Charles M. Rowland II at (937) 318-1DUI or 1-888-ROWLAND.  Charles Rowland has taken the same NHTSA approved training as law enforcement, is Ohio’s only Forensic Sobriety Assessment certified attorney and has honed his skills as both a defense attorney and a prosecuting attorney.  Please visit www.DaytonDUI.com to find out more.