WHAT MUST AN OFFICER SEE BEFORE ASKING A DRIVER TO COMPLETE FIELD SOBRIETY TESTS?
The Ohio Court of Appeals has held that a police officer must observe certain factors before he or she may ask a driver to complete field sobriety tests. The Court also found that a minor traffic violation, coupled with a moderate smell of alcohol and bloodshot eyes, does not create the “reasonable, articulable suspicion” necessary for an officer to ask a driver to perform field sobriety tests. State v. Nelson, 2017-Ohio-2884.
DRIVER ARRESTED FOR OVI AFTER DRIVING IN MARKED LANES, PERFORMS FIELD SOBRIETY TESTS AND HAS A BAC OVER LEGAL LIMIT
In Nelson, the arresting officer testified that on the evening of the arrest, he witnessed driver’s side tires drift to the left twice, crossing over the painted line markings on the left side of the lane by two tire widths each time. After the second time, the car “drifted” back into its lane and then to the right, nearly striking the right curb. There was no line on the right side of the lane.
The officer initiated a traffic stop and the defendant pulled over right away. The officer approached her vehicle and requested her driver’s license and insurance information. She did not show any problems with dexterity as she looked through her purse.
When the officer returned to her car after a license check, he noticed that her eyes were “bloodshot” and “somewhat watery.” He also detected a “moderate odor of an alcoholic beverage being emitted from her inside the vehicle.”
He testified that the odor was not strong, but that it “seemed to intensify as [she] spoke.” When the officer asked her if she had been drinking, she stated that she “had been drinking last night.” It was unclear whether she meant the previous evening or just earlier that day. The officer believed she showed some confusion that it was Saturday.
Based on these observations, the officer decided to investigate whether she was impaired; he asked her to exit the vehicle, and her behavior when she exited the car and walked to the sidewalk was not noteworthy. She performed several field sobriety tests, which the officer believed she failed. She was arrested for OVI, took a breath test and her BAC was over the legal limit.
REASONABLE ARTICULABLE SUSPICION
“A police officer may stop and detain a motorist when he or she has a reasonable, articulable suspicion that the motorist has committed, is committing, or is about to commit any criminal offense, including a traffic offense.” State v. Mays, 119 Ohio St.3d 406, 2008-Ohio-4539. Reasonable, articulable suspicion is determined by the officer considering the “totality of the circumstances” of each criminal investigation. State v. Nelson, 2017-Ohio-2884,
PRIOR OHIO CASES DISCUSSING REASONABLE SUSPICION IN OVI CASES
Several cases similar to Nelson show that the observations witnessed by the officer, does not create a reasonable articulable suspicion of impaired driving requiring the need for field sobriety tests.
- An officer pulled a car over for failing to signal a left turn. The officer observed that the driver’s eyes were glassy and bloodshot and was able to smell alcohol. The Court held the evidence was insufficient to establish that the officer had a reasonable, articulable suspicion of driving under the influence. State v. Swartz, 2d Dist. Miami No. 2008 CA 31, 2009-Ohio-902
- A police officer stopped the driver’s car for a window tint violation. The officer also observed glassy, bloodshot eyes and an odor of alcohol. The driver also admitted that he had consumed one or two beers. The Court held that the odor, coupled with the defendant’s admission that he had had one or two beers, or his bloodshot, glassy eyes, established a reasonable, articulable suspicion justifying the field sobriety tests. State v. Dixon, 2d Dist. Greene No. 2000-CA-30, 2000 WL 1760664 (Dec. 1, 2000)
DEFENDANT’S ATTORNEY FILES A MOTION TO SUPPRESS ARGUING NO REASONABLE SUSPICION TO CONDUCT FIELD SOBRIETY TESTS
The Defendant’s motion to suppress did not dispute that there was justification for the traffic stop. She did in fact drive in marked lanes. Rather, she argued that there was no reasonable, articulable suspicion for the officer to conduct field sobriety tests. The motion sought to suppress the field sobriety tests, the chemical tests, and any observations by the officer made during the field sobriety tests.
The trial court agreed. It found that she had not admitted to drinking the evening of the stop, that her traffic violation had been “de minimis,” and that her speech was not impaired. The court also found that neither Nelson’s movement when she exited the car nor her demeanor indicated any impairment, that there had been no complaints from third parties about her driving, and that it was not particularly late at the time of the traffic stop.
The trial court concluded that Nelson’s traffic violation (marked lanes) was not a “substantial violation” and that, while it may have supported a “hunch” on the officer’s part that she was impaired, it did not rise to the level of reasonable, articulable suspicion.
The court further concluded that the “moderate” smell of alcohol was not entitled to “much weight,” “because drinking before driving is not illegal in Ohio unless it rises to a level that impairs one’s ability to drive.” The court found that she had not admitted to drinking on the night of the traffic stop.
The trial court did not find the officer’s observations about her eyes to be significant, noting that her eyes were not described as “glassy.” The court also found Nelson’s alleged confusion about the day of the week to be insignificant, because the officer had decided to conduct field sobriety tests before this part of the their conversation.
The Court of Appeals agreed. However, the appeals court in Nelson did state that each case is a close call, and each case will vary based on the unique circumstances of each instance. “These cases are often close calls based on the totality of the circumstances, the trial court’s weighing of the evidence, and its determinations of credibility.” State v. Nelson, 2017-Ohio-2884.
OVIs and other alcohol related driving offenses can vary from case to case and there can be difficulty understanding what defenses may be available to you. It is important to contact an attorney who is knowledgeable about all possible defenses available to you including whether the arresting officer had a reasonable and articulable suspicion to continue his or her investigation. If you have questions about your Columbus OVI charges, talk to our Columbus OVI attorneys at 614-361-2804.