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OVI Charge Dismissed Where Officer Gave Incomplete Instructions on Field Sobriety Tests and the Driver Did Not Admit to Drinking

ovi field sobriety test instructions incomplete dismissed

In one recent Columbus (Franklin County) OVI case, the driver was:

  • in an accident,
  • the officer noted a strong odor of alcohol,
  • bloodshot and glassy eyes,
  • slurred speech,
  • the driver did NOT admit to drinking,
  • the driver took and failed field sobriety tests, and
  • the driver took and failed the breathalyzer test at the police station after the arrest.

And yet all charges were dismissed.

The reason for the dismissal was a lack of probable cause to arrest.  The court found that the officer gave incomplete instructions on the field sobriety tests.  Thus, the field sobriety tests were excluded from evidence.

Without the field sobriety tests in evidence, the court found that the other indicia of intoxication (odor of alcohol, bloodshot eyes, etc) were not enough to create probable cause to arrest him for OVI.

Without probable cause to arrest, the breathalyzer results taken after the arrest were also thrown out.

As a result, all Columbus OVI charges were dismissed.

The Driver is in an Accident, Fails Field Sobriety Tests and Fails Breathalyzer Test

An officer was on duty during the late evening hours.  He responded to a report of a crash on eastbound State Route 33 at Bixby Road in Columbus.

When he arrived, he saw the defendant standing next to his car on the berm of the road.  The other car involved in the accident was in a ditch.  The road was icy and snowy and the defendant had rear ended the other car.

When the officer spoke with the defendant, he thought he smelled alcohol.  However, the officer was congested from a cold that affected his sense of smell.  The officer also said he believed the defendant had bloodshot eyes and slurred speech.   Although he could not remember exactly, the officer said he asked the defendant whether he had consumed any alcohol and the defendant said he had not.

Another officer then came to the scene to assist.  The second officer also noticed was the “strong odor of alcoholic beverage,” observed bloodshot, glassy eyes and slurred speech.


The second officer then asked the defendant to perform a series of field sobriety tests including the HGN, the walk-and-turn test, and the one-leg stand test, which the defendant agreed to do.  The field sobriety tests were recorded on the cruiser camera, but without audio.  The officer narrated the video from the stand at the motion to suppress.


The officer described administering the walk-and-turn test. He said that during the instructions portion, the defendant “couldn’t keep his balance,” used his arms to try to keep his feet from breaking apart, asked for instructions again midway through the test, and took the wrong number of steps both on the walk out and the walk back.  He showed four of a possible eight clues of intoxication.


The officer then described the instructions he provided in administering the one-leg stand test, telling Gervais “to stand with his feet touching, his arms at his sides. I asked him to choose whichever foot he decided, lift it up approximately six inches off the ground, pointing the – – so that the width is parallel to the ground, and then to count by 30 by thousandths and then I demonstrated the test along with the count.”

The officer said he observed two out of a possible four clues of intoxication: he used his arms for balance and he put his foot down during the test.

The HGN was not at issue at the motion hearing because it was stipulated by the prosecutor that it was improperly administered.

Defendant is Arrested for OVI and OVI with a Prohibited Breath Alcohol Concentration

Following the field sobriety tests, the officers arrested the defendant for OVI.  At the station, the officer administered the breath alcohol test.  The defendant tested over the .08 limit.

The defendant was charged with OVI (R.C. 4511.19(A)(1)(a) and, OVI with a prohibited breath alcohol concentration (R.C. 4511.19(A)(1)(d)).

Because the Officer Did Not Properly Administer Field Sobriety Tests, There Was No Probable Cause to Arrest and the Post-Arrest Breath Test Should Be Excluded

Following the motion hearing, the trial court determined that the officer lacked probable cause to arrest the defendant for OVI.  Because the video did not include any audio of the officer’s instructions on the field sobriety tests, the trial court could only rely on “what the officer said he said” by way of instruction.

Determining that the officer’s testimony indicated “there were not complete instructions given” on the field sobriety tests, the trial court found a “lack of evidence to support the field sobriety tests in this case.”

Without the field sobriety tests to consider, the trial court further found that the other indicia of intoxication, such as the odor of alcoholic beverage and a traffic violation, was not “strong enough to validate an arrest in the absence of field sobriety tests.”

Because the trial court concluded there was not sufficient probable cause for the arrest, the trial court suppressed the breath alcohol test.  Without probable cause to arrest, all OVI charges must be dismissed.

The City of Columbus appealed the decision and lost.

When Does an Officer Have “Probable Cause” to Arrest Someone for OVI?

To determine probable cause for an OVI arrest, the court looks at whether the officer had information (that he observed himself or from a trustworthy source) that would “cause a prudent person to believe the suspect was driving under the influence of alcohol, drugs, or both.” State v. Montelauro, 10th Dist. No. 11AP-413, 2011-Ohio-6568, ¶ 20.

To determine probable cause, the court looks to the “totality of the facts and circumstances” – looking at all the facts, would a reasonable person think that the driver was under the influence?

Can there be probable cause to arrest if you refuse field sobriety tests or they are thrown out?   Admitting to the officer that you have been drinking alcohol seems to be a major factor. 

Even without field sobriety test results, there can be probable cause to arrest for OVI if other facts are present.

In fact, courts in previous Ohio cases – e.g. State v. Belmonte, 10th Dist. No. 10AP-373, 2011-Ohio-1334 and State v. Homan, 89 Ohio St.3d 421, 427 (2000) – have found that the officers had probable cause to arrest even though the field sobriety tests were excluded but where other factors were present such as:

  • defendant caused an automobile accident;
  • officer observed erratic driving
  • a strong odor of alcohol emanating from the defendant;
  • an admission by the defendant that he or she was recently drinking alcohol;
  • other indicia of intoxication, such as red glassy eyes, slurred speech, and difficulty walking.

But the court noted one primary difference between those cases and this case – in the Columbus case, the driver did not admit to drinking.  This seemed to be a significant factor in the court’s decision to find no probable cause to arrest.

In this Columbus case, the state argued that there was probable cause to arrest the driver in this case because:

  • He was the at-fault driver in a traffic crash,
  • The officer said the driver emitted a strong odor of an alcoholic beverage,
  • The officer noted that the driver bloodshot and glassy eyes, and
  • The officer noted that the driver exhibited slurred speech and slow responses.

But because the driver made no admissions to drinking and the field sobriety tests were thrown out, the judge found no probable cause to arrest.

NOTE:  Given that this particular Columbus OVI case seemed to place such a strong emphasis on admitting to drinking, it seems to be particularly important when facing an OVI arrest NOT to make any admissions to the officer about whether / how much you have had to drink. 

All told, the trial court found these other indicia of intoxication not strong enough to validate an arrest without field sobriety tests.

To read the full opinion, see State v. Gervais, 2015-Ohio-987.