Defendant Charged with OVI; Pled Guilty to Physical Control; Gets One Year Probation

A Columbus police officer stopped and cited the defendant for driving left of center, failing to use a turn signal, and operating a vehicle while under the influence (“OVI”).

The OVI charge was based on the defendant’s refusal to submit to a breath test and other signs pointing to potential alcohol intoxication, including:

  • traffic violations themselves,
  • indications on the (HGN) horizontal gaze nystagmus test, and
  • Detection by the arresting officer of the odor of alcohol.

His attorney negotiated a plea deal under which he pled guilty to physical control and the traffic violations were dismissed.   In exchange, he was ordered to:

  • complete the Driver Intervention Program (DIP) and any suggested follow up counseling,
  • 180 days in jail (suspended 177 days) conditioned upon completion of probation (community control) for one year,
  • pay a fine and costs, and  
  • to complete 80 hours of community service.

Terms of Probation (Community Control)

The terms of his community control (probation) were these:

  • No same or similar offense;
  • No new offenses of any kind;
  • Submit to alcohol/drug screens when requested;
  • No refusal of any tests (urine, breathalyzer, etc).

Probation Violation: Failure to Submit to a Urine Test

About three months after he pled guilty, the probation officer instructed him to submit a urinalysis (urine test). Without hesitation and without even trying, the defendant said that he could not.

After an hour, he was sent to American Court Services (ACS). He stayed there all day but did not submit a urinalysis.  He attempted only 1 time within a 7 ½ hour period with ACS.

Trial Court Revocation Hearing on Probation Violation

The trial court held a hearing on the probation violation.  The judge (Judge McCarthy, who is no longer on the Franklin CountyMunicipal Court bench) announced that, in the absence of a prosecutor, he would conduct direct examination.

On direct examination, the probation officer testified that she asked the defendant to submit to urinalysis. She testified that she had no suspicion that he was impaired, but ordered it simply because the court had ordered testing.

However, the defendant said he was unable, at that time, to produce a urine sample for testing and did not, at least initially, appear to try.   She said he drank water and waited from 9:00 a.m. to after 6:40 p.m. without producing urine.  She admitted that if he were faking an illness, that would have been an unusually long time to not have to use the bathroom. 

She also admitted that the defendant explained that he suffers from congestive heart failure and kidney problems that make it difficult for him to urinate with regularity.  His attorney introduced exhibits confirming his medical conditions, which were known to cause urinary difficulties.

The defendant also testified, explained that he had not refused to submit to a drug test, but simply found that he could not physically manage to pass urine.  He tried drinking water, running the faucet, but to no avail.

The trial court nonetheless found him in violation, ordered further drug and alcohol testing and ordered the defendant to submit to installing an ignition interlock device on his vehicle.

On Appeal, Court Found No Probation Violation Because Defendant Did Not “Willfully” Refuse to Take Urine Test

The standard considered by a court in a probation hearing is not “beyond a reasonable doubt”, as it would be in a jury trial.  Rather, in a probation violation hearing, the state just has to provide “substantial evidence that a probationer willfully violated the terms of his or her probation.”  

Here, the question was whether the evidence justified finding that the defendant’s failure to provide a urine sample when ordered was a willful “refusal” constituting a probation violation.

Acting “willfully” meant “an act done intentionally, designedly, knowingly, or purposely, without justifiable excuse.” State v. Earlenbaugh, 18 Ohio St.3d 19, 21 (1985), citing Black’s Law Dictionary, 1434 (5th Ed.1979).

The Franklin County Court of Appeals disagreed with the trial court, finding that the defendant DID have a justifiable excuse for not producing a urine sample.  Thus, his conduct was not “willful.”

Because the record was devoid of any indication that the defendant willfully refused to comply with the testing requirements of his probation, the court of appeals found no probation violation.  

If you are facing a probation violation, talk to one of our Columbus probation violation attorneys about the specifics of your case and potential defenses.

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