Friday, November 16, 2012

Totality of facts & circumstances support OVI probable cause

The 5th. District Ohio Court of Appeals last Nov. 5th. held that "when evaluating probable cause to arrest a suspect for OVI, the totality of the facts and circumstances can support a finding of probable cause to arrest even when no field sobriety tests are administered."

The case involved a seventy-one year old male stopped for committing a marked lanes violation. On approaching suspect's car, the arresting officer noticed an odor of alcohol and, when asked, suspect/appellant admitted to having consumed two glasses of wine prior to driving. Officer also noticed suspect/ appellant's having blood shot eyes, and had difficulty retrieving his identification and insurance documentation. Having a recent hip injury, suspect/appellant asked to perform a non-standardized procedure attempting to touch his fingers to his thumb one way and then the other, which he couldn’t do to the officer's satisfaction. Officer asked suspect/appellant if he would agree to a breath test and was transported him to the Hebron Police Department, where he tested a .126 on the BAC DataMaster. At trial defendant/appellant filed motion to suppress the field sobriety tests, his arrest for lack of probable cause, and the BAC DataMaster results. The trial court excluded the field sobriety tests because the State failed to establish the testing standard and because the officer had not administered the tests in substantial compliance with the NHTSA manual.

 State v. Nethers, 2012-Ohio-5198

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