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ILLEGAL STOP OF PERSON OR VEHICLE
– A driver cannot be stopped unless the officer has a reasonable
and articulate basis to believe a law has been violated. An
individual cannot be arrested unless a violation has occurred.
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ANONYMOUS REPORT OF DRUNK DRIVING
– A motor vehicle cannot be stopped because an anonymous citizen
reported the driver was intoxicated.
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WEAVING INSIDE MARKED LANES IS
NOT ILLEGAL – Weaving without crossing marked lanes does not
violate the law. A motor vehicle cannot be stopped for that
reason.
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LACK OF PROBABLE CAUSE TO ARREST
– A law enforcement official must have specific and articulable
facts to support an arrest for DUI/OVI, or the arrest will be
reversed and the evidence will be suppressed at trial.
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PRIVATE PROPERTY – A driver who
has not operated a motor vehicle on a public highway cannot be
arrested for drunk driving on private property.
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FAILURE TO PROVE DRIVING – An
individual admitting to driving a motor vehicle, without more
evidence, does not prove a charge of driving under the
influence.
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ABSORPTION OF ALCOHOL AFTER
DRIVING A MOTOR VEHICLE – The prosecutor must prove that the
blood or breath alcohol was over the acceptable limit (.08%) at
the time the individual was operating a motor vehicle. Any
consumption of
alcohol after the driving but before the arrest will not sustain
a conviction.
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BAD OR INCLEMENT WEATHER –
Weather conditions, including high winds, low visibility, rain,
ice, etc. are options for a defendant to prove poor or improper
driving or balance.
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INTERFERING SUBSTANCES – Many
over the counter products (such as cough drops, inhalers used
for asthma, paints, finger nail polish, etc.) contain forms of
alcohol which can contribute to false blood alcohol results,
rendering the results to be invalid.
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MEDICAL AND HEALTH PROBLEMS –
Medical conditions with one’s arms, legs, back, neck, eyes and
other conditions can affect the results of field sobriety tests,
leaving the validity of the test results invalid.
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ILLEGAL SEARCH – A law
enforcement official is prohibited from searching an individual
or the individual’s motor vehicle for a minor traffic offense
without the driver’s permission or probable cause. All evidence
illegally obtained by the officer is not admissible in court.
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FIELD SOBRIETY TESTS IMPROPERLY
ADMINISTERED – Field sobriety tests that are improperly
administered are not valid evidence of intoxication (per the
National Highway and Traffic Safety Administration).
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NON-STANDARDIZED FIELD SOBRIETY
TESTS ARE INVALID – Neither the National Highway and Traffic
Safety Administration (NHTSA) nor medical science consider
counting in reverse, reciting the alphabet, or touching your
finger to your nose as valid sobriety tests.
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STANDARD FIELD SOBRIETY TESTING
INACCURATE – The one-legged stand is only 65% accurate in
healthy individuals. The walk-and-turn test is only 68% accurate
in determining if an individual is under the influence.
Individuals with injuries, medical conditions, 50 pounds or more
overweight, and 65 years of age or older cannot be validly
judged by such tests.
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PORTABLE BREATH TEST IMPROPERLY
ADMINISTERED – Manufacturers of portable breathalyzer equipment
require a minimum of two tests to consider the results of such
testing to be evidence.
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PORTABLE BREATH TEST INADMISSIBLE
– Ohio law prohibits the use of portable breath testing results
as evidence at trial in an DUI/OVI/OVI case.
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BREATH MACHINE NOT PROPERLY
OPERATED – Failure to follow the specified protocols of the
breath machine manufacturer in conducting breath tests will
result in improper readings.
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BREATHALYZER MACHINE MALFUNCTIONS
– Malfunction or repair of breath testing equipment within 62
days before or after a suspect’s breath test may render such
testing invalid.
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BREATH TESTING IS INACCURATE –
Most experts consider the taking of only one breath test to be
unreliable.
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FAILURE TO RECORD CERTIFICATION
TESTS – Failure to include the value of the simulator solution
used to test breath machines will cause test results to be
inadmissible in court.
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FAILURE TO PRODUCE DISPATCH TAPES
– Most motor vehicle stops as well as police communications
regarding the arrest of an individual are recorded on dispatch
tapes. Failure to preserve said tapes and to provide same upon
request may cause all evidence to be suppressed.
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IN-SQUAD VIDEOS – Videos of a
suspect’s driving and field testing are almost always recorded
by a camera in the officer’s squad car. These recordings can
often times be used
to contradict an officer’s testimony.
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BOOKING ROOM VIDEOS – Videos can
and usually are taken at the police station. These tapes may
reflect the suspect’s clear speech or good physical balance,
which often times contradicts the officer’s testimony.
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INDEPENDENT WITNESSES – Witnesses
to an accident, bartenders, hospital personnel and others can
often times provide evidence of a suspect’s sobriety.
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EXPERT WITNESSES – Experts may be
employed to review and testify regarding the validity of field
sobriety tests, breath tests, blood tests, etc.
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FAILURE TO READ SUSPECT MIRANDA
WARNINGS – If the law enforcement official has not read Miranda
Warnings to a suspect the statements made by the suspect cannot
be used as evidence against the individual.
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OFFICER’S PRIOR DISCIPLINARY
RECORD – A law enforcement officer’s prior disciplinary record
can be used to attack the officer’s credibility.
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MISLEADING STATEMENTS BY LAW
ENFORCEMENT OFFICERS – Any misleading statements made by a law
enforcement officer regarding the consequences or taking or
refusing to take blood, breath or urine test(s) may cause the
one year driver’s license suspension to be reversed and removed
from the individual’s driving record.
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PRIOR INCONSISTENT STATEMENTS BY
POLICE OFFICERS – Any and all statements made by an officer
(verbal, written, or testimony at previous court hearings) may
be used to attack the officer’s credibility.
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FAILURE TO DISCLOSE EXPERTS – If
a prosecutor fails to disclose the State’s expert(s) those
witnesses may be barred from testifying against the defendant.
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FAILURE TO PROVIDE SPEEDY TRIAL –
A trial for DUI/OVI must be held within ninety (90) days of the
defendant’s arrest, or the case must be dismissed.
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HOSPITAL BLOOD TEST INACCURATE –
In healthy, uninjured individuals hospital blood test
overestimate an individual’s true blood alcohol level by as much
as 25%. Such hospital tests are not statistically reliable in
severely injured individuals.
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FORCED BLOOD DRAWS – A blood test
cannot be taken against a driver’s consent where there has not
been an injury involved or the results from said test(s) will be
inadmissible. A new Ohio law coming in September, 2008 is
attempting to change this!
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LACTATE RINGERS – If lactate
ringers are used by hospital staff in treating a patient, blood
serum results will report falsely elevated and would, therefore,
be invalid readings.
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ALCOHOL SWABS – If a medical
professional uses an alcohol swab when taking a blood sample,
the results will be inaccurate.
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BREATH TEST OPERATOR NOT LICENSED
– If a breath test operator does not have a valid, unexpired
operator’s license the breath test result is inadmissible.
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STATUTE OF LIMITATIONS – A
misdemeanor charge of DUI/OVI must be filed within eighteen (18)
months of the offense.
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FAILURE TO CONDUCT OBSERVATION
PERIOD – Ohio law requires that a driver be observed
continuously for a minimum of twenty (20) minutes prior to a
breath test in order for the results to be admissible in court.
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BREATH TEST DEVICE NOT APPROVED –
A breath testing instrument must be listed on the Federal List
of Approved Breath Evidential Instruments and the ISP approved
list of devices or the results are inadmissible.
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BREATH TEST OPERATOR LICENSE
EXPIRED – An Ohio breath test operator must possess an unexpired
operator’s license, or the breath test results are inadmissible.
