The Licking County Court of Appeals (Fifth District of Ohio) recently decided an OVI case of note — State v. Parks, 2013-Ohio-2492. The court in this case found that if you are arrested, ask for a lawyer before you take the breath test, are denied the opportunity to call a lawyer, and subsequently refuse the test, evidence of your refusal is still admissible in court.
This is what happened.
OFFICER REFUSES TO LET DRIVER CALL HER ATTORNEY AFTER BEING PULLED OVER FOR OVI
Around 3:00 a.m., a Pataskala City Police officer was on routine patrol. He passed the defendant on Broad Street in the area of Etna Parkway and saw her tire go over the right side of the white or “fog” line on the road,
The officer turned his lights on and the defendant pulled into a residential driveway and turning off her lights—even thought she didn’t live there.
When asking her for her information, the officer detected a slight odor of an alcoholic beverage. He asked the defendant if she had had anything to drink, and she said no. He then asked her to say the alphabet and noted that she slurred a few letters and skipped some letters. The officer also noted that she had bloodshot, glassy eyes.
The Pataskala officer asked her to step out of the vehicle and proceeded to administer a series of standardized field sobriety tests (SFSTs).
First, she submitted to the horizontal gaze nystagmus (HGN) test, and the officer testified that he observed six out of six possible clues of impairment. Next, the officer performed the walk-and-turn test, on which she indicated three clues of impairment. Finally, on the one-leg stand test, the Pataskala noted three clues of impairment. The defendant was arrested for O.V.I., but refused to submit to a breath test.
At some point after the officer requested that she take a breath test, and he made her aware of the legal implications of refusing the test, and the defendant asked to call a lawyer.
The officer testified that he did not permit her to call a lawyer.
She was charged with one count of O.V.I. pursuant to R.C. 4511.19(A)(1)(a) and one count of a marked lanes violation pursuant to R.C. 4511.33. She entered not guilty pleas and filed a motion to suppress evidence flowing from the traffic stop and resulting arrest.
HGN (EYE) TEST THROWN OUT FOR OFFICER FAILURE TO FOLLOW PROPER PROTOCOL
At the hearing, the trial court suppressed the portion of the HGN test involving the onset of nystagmus at maximum deviation, finding the officer did not conduct that portion of the test in substantial compliance with NHTSA protocols.
The trial court found that when the officer checked the defendant’s eyes for nystagmus at maximum deviation, he checked the right eye three times but the left eye only once. (The NHTSA manual requires both eyes to be checked twice.) The trial court further found this error to be more than a “minor procedural deviation” and therefore suppressed that portion of the HGN test. The appeals court agreed.
DRIVER’S REFUSAL TO TAKE A BREATH TEST WAS ADMITTED EVEN THOUGH SHE WAS NOT ALLOWED TO CALL HER ATTORNEY
The trial court also suppressed the evidence that Parks refused to submit to a breath test, finding that her request to speak with an attorney when asked to take a breath test did not constitute a refusal. Unfortunately, the appeals court disagreed.
Both Ohio law and the U.S. Constitution guarantee the right to counsel at “critical stages” of criminal proceedings. But, the Ohio Supreme Court has found that an officer requesting a chemical test for alcohol content is not such a critical stage.
In other words, the prosecution can present evidence of a breath test or the refusal of a breath test – even if the officer refused to allow the defendant to call an attorney before taking or refusing the test.
The appeals court found that the prosecution should have been able to introduce evidence of the defendant’s refusal and the defense could introduce evidence of the refusal of the right to counsel – and the jury can decide based on the facts.
This is not a substantial deviation from existing Ohio law, but it is an important case to note. If you are pulled over for an O.V.I., you should absolutely ask to call an Ohio attorney to examine your options regarding whether you should take a breath test. But if you are not allowed to call a lawyer at that time, evidence of you taking or refusing the test is still admissible in court.