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Franklin County OVI Dismissed Where Officer Cited Only Speeding, Slurred Speech and Moderate Odor of Alcohol in Support of Arrest

speeding ovi dui attorney

The Franklin County Court of Appeals recently decided an interesting OVI case – State v. Bracken, 2017 Ohio 721.  

The only evidence of impairment the officer cited were:

  • Speeding
  • A moderate odor of alcohol and
  • The driver’s eyes were bloodshot and glassy.

The court found that these factors alone were NOT enough to establish probable cause to arrest for OVI.

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 Driver Pulled Over for Speeding, Odor of Alcohol, Bloodshot Eyes, Arrested for OVI

In State v. Bracken, 2017 Ohio 721, (Ohio Ct. App. 2017), the driver was pulled over by an Ohio State High way Patrol officer after the officer allegedly witnessed the Defendant speeding.

The officer noted the following facts in support of the OVI arrest:

  • A moderate odor of alcohol (but no more than moderate)
  • The defendant’s eyes were bloodshot and glassy
  • The Defendant’s face was flushed  (The officer acknowledged, however, that he did not shine a light on Bracken’s face to help him to better make such observations.)
  • The driver admitted that he had consumed two beers.

Field sobriety tests 

  • Horizontal gaze nystagmus test (“HGN”). The Defendant was viewed by the officer as displaying six clues which indicated alcohol consumption. The video, however, was unclear and didn’t allow the court to evaluate how the HGN test was conducted or its results.
  •  Walk-and-turn test.  The officer said the defendant displayed five of the eight possible clues indicating alcohol consumption to an unacceptable level.  The officer said that  starting the walk and-turn test before being told to start walking as an indication of being impaired.
  • Recite a portion of the alphabet. The defendant allegedly skipped a letter.
  • One-leg stand test.  The officer finally testified that the defendant displayed three of four possible clues indicating an illegal blood alcohol level.  But the video did not support the officer’s conclusions.

The Defendant was placed under arrest for OVI (Operating a Vehicle under the Influence of Alcohol or Drugs) based on the officer’s view the Defendant was impaired by either drugs or alcohol.


If a driver is speeding, then an officer will have had a reasonable basis for pulling a vehicle over based on evidence the vehicle was traveling over the speed limit. State v. Bracken, 2017 Ohio 721, (Ohio Ct. App. 2017)

However, speeding alone will not support arresting a defendant on a charge of OVI, because speed alone, without more evidence, is not considered to be an indication of operating a vehicle under the influence. Supra


Officers also generally make notations of bloodshot or glassy eyes, an odor of alcohol, slurred speech, erratic driving, and the performance of a defendant on field sobriety tests before making the decision to arrest for OVI.

In Bracken, the Defendant had no trace of slurred speech, and the police cruiser video showed he was able to perform his field sobriety tests in accordance with the instructions.  After viewing the video, the court found that the field sobriety tests did not indicate impairment.  The only indicators the officer relied on were the fact that the Defendant was speeding, a moderate odor of alcohol, and bloodshot eyes.

The Court went on to state it agreed with the trial court in that the officer’s observations were not enough to support a finding of guilty for OVI.

OVI and Alcohol related offenses 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. If you have questions about your Columbus alcohol related criminal charges, talk to our defense attorneys at 614-361-2804.