Recently, an Upper Arlington OVI case was dismissed for lack of probable cause to arrest. In State v. Wissinger, 2014-Ohio-1601, the defendant was charged with (1) one count of OVI under City of Upper Arlington Ordinance 353.01(A); (2) one count of OVI per se, in violation of City of Upper Arlington Ordinance 353.01(B)(2); and (3) one count of operating a vehicle with expired tags. The charge was originally filed in the Upper Arlington Mayor’s Court.
The defendant filed a jury demand, and the case was transferred to the Franklin County Municipal Court where the defendant entered a not guilty plea. Soon after, he filed a motion to suppress the results of the breath test and any other evidence seized during the stop.
At the hearing, the facts in evidence went like this. An Upper Arlington police officer was on patrol and was stopped at the light at the intersection of Lane Avenue and Northwest Boulevard. The officer ran a random registration check on the defendant’s car, which showed that his license plate tags had expired.
The Stop – Is a Random Expired Tags Check Enough to Initiate a Traffic Stop?
On appeal, the City of Upper Arlington argued that the officer had reasonable suspicion to stop appellee for expired tags. The court found that yes, under prior law, expired tags does create probable cause to initiate a traffic stop and ticket for expired tags.
Here, the officer followed the defendant’s car and saw him make two consecutive left turns – essentially turning around to go in the opposite direction. At that point, the officer pulled the car over. The defendant promptly pulled over and made a “safe stop” on a residential street.
On cross exam, the officer agreed that the defendant was “not weaving within his lane, he did not drive over the curb, he was not driving erratically, he was not speeding, he was not slowing down and speeding up, he did not hit any other vehicles, and he did not commit any moving traffic violations.” Further, he was cooperative and straightforward during the traffic stop.
When he approached the car, the officer testified that he “smelled the odor of a strong alcoholic beverage coming from the vehicle,” that the defendant’s eyes were “glassy and bloodshot,” and that defendant admitted to having come from a bar. When asked if he had been drinking, the driver said he had three beers. Although disputed, the officer also testified that the driver said each beer was 22 ounces.
The officer asked why the defendant turned around and “essentially had just driven in circles.” According the the Upper Arlington officer, the defendant couldn’t give a satisfactory answer other than he was headed to a friend’s house located in the opposite direction.
The Field Sobriety Tests
With appellee still seated in the car and the Officer standing outside the window, the officer asked the driver to follow a pen with his eyes without moving his head. This was presumably not caught on video. However, the City of Upper Arlington did provide a video of the traffic stop which included the field sobriety tests.
First, for the Horizontal Gaze Nystagmus (“HGN”) Test, the officer testified that he observed six out of six signs for impairment. He then administered the one-leg stand and testified that appellee swayed and failed. He administered a third test but did not discuss it in the hearing. He then arrested him for OVI.
At the hearing and on appeal, at issue was whether the officer properly instructed the defendant before administering the tests.
Horizontal Gaze Nystagmus (“HGN”) Test
In this case, the officer conducted the HGN test without instruction and not in substantial compliance with the National Highway Traffic Safety Administration (“NHTSA”) testing standards. Initially, the officer performed the HGN test while appellee was still seated in his vehicle. The only instruction he gave at that point was – “[d]o me one favor. Can you see my pen okay? Can you keep your head still and follow that with your eyes?” These instructions did not comply with NHSTA standards.
Then he administered the test again outside the car. Prior to this second test, the officer “asked whether the defendant wore contact lenses or required glasses, instructed him to stand with his arms at his side, again asked whether he could see the tip of the pen, and told appellee to keep his head still and follow the tip of the pen with his eyes only.”
The NHTSA manual requires the following instructions before administering the HGN test:
(1) Begin by asking ‘are you wearing contact lenses’ ” and make a note of the suspect’s response before starting the test.
(2) Give the suspect the following instructions from a position of interrogation: “I am going to check your eyes. Keep your head still and follow this stimulus with your eyes only. Keep focusing on this stimulus until I tell you to stop.”
Although the officer said he observed six out of six signs of impairment, it was unclear whether these were during the in the car or out of the car test. Because the “seated in the car” test was not in compliance with NHSTA standards for instruction, the results of the test were thrown out.
One Leg Stand Test
The Officer conceded, as confirmed by the video, that the defendant’s foot was up off the ground, his other foot firmly planted, and he never put both feet down. Although the officer said he saw the defendant sway, the video did not confirm this testimony. Moreover, even if the defendant did sway, exhibiting only one “clue” on the one-leg stand test is not considered a “failure” by NHTSA standards.
Walk and Turn Test
Regarding the walk-and-turn test, there was no testimony at all and no indication, as the video confirms, that the defendant failed that test.
Because each of the field sobriety tests were either passed or thrown out, the court concluded the officer lacked probable cause to arrest for OVI. Without probable cause to arrest, the subsequent breath test at the Upper Arlington police station could not be used in evidence.
If you or a friend or family member have been arrested for OVI in Upper Arlington or anywhere in Columbus and submitted to field sobriety tests that you think may have been flawed, talk to an Upper Arlington OVI attorney. Knowing your options and potential defenses can give you a better perspective going forward in your case.