DUI Appeal - Sobriety Tests Inadmissible in Per Se Case Says Ohio Court

The below case was provided to DAD thanks to the watchful eyes (and summary) of NCDD member Jeff Meadows. He has provided the summary below:

State v. Henricksson
4/4/2011
2011-Ohio-1632
12th District Court of Appeals

Document QUICK LINK: View Court Published Official Document

Issues: HGN, video, admissibility, 4511.19(A)(1)(h)

Case Summary Overview:
D was stopped for weaving within her lane and changing lanes without signaling. Ultimately she was arrested for OVI and charged with A1a and A1h. Her MTS was denied and the case was tried to the court - whereupon the prosecutor dismissed the A1a and went forward with ONLY the A1h charge.

During trial, the Defense tried to offer evidence of the HGN and cruiser-cam video, but the State objected and the court sustained the objection. Defendant was convicted and sentenced to the high tier penalties. This appeal followed raising many issues but of particular importance is the issue of admissibility of the HGN and video on a PER SE trial.

HELD: The 12th District affirmed holding: "..the state was only required to prove two elements; namely, that appellant was operating a vehicle within the state, and that, at the time of the offense, she had a concentration of .17 of one gram or more by weight of alcohol per 210 liters of her breath." "See State v. Jobe (July 13, 1998), Clermont App. No. CA97-10-083, at 4-5; State v.
Knapke, Franklin App. No. 08AP-933, 2009-Ohio-2989, ¶8. As a result, because these two facts are the only facts of consequence in this case, the HGN test results, as well as the
video taken from Trooper Bierer''s in-dash camera, are not relevant in prosecuting a violation of R.C. 4811.19(A)(1)(h), and therefore, not admissible.1 See State v. Boyd (1985), 18 Ohio St.3d 30, 31; see, also, State v. Obhof, Franklin App. No. 07AP-324, 2007-Ohio-5661, ¶16; Evid.R. 402."

They also include an interesting footnote that states: "It should be noted, however, that appellant could have challenged the accuracy of her specific breathalyzer test result by introducing evidence showing "something went wrong with [the] test and consequently, the result
was at variance with what the approved testing procedure should have produced." Columbus v. Aleshire, 187
Ohio App.3d 660, 2010-Ohio-2773, ¶24, 27; see, also, State v. Tanner (1984), 15 Ohio St.3d 1, 6 ("[a] defendant
may still challenge the accuracy of his specific test results, although he may not challenge the general accuracy
of the legislatively determined test procedure as a valid scientific means of determining blood alcohol levels")."

This commentator finds it interesting that the footnote references the "legislatively determined test procedures" since there are NO LEGISLATIVELY DETERMINED TEST PROCEDURES!!!

This commentator also believes this case can be used to open, or at least unlock the VEGA door since the OSC in VEGA stated: "...Rebuttable evidence may include non-technical evidence of sobriety, such as a videotape..." "...and the completion of field sobriety tests." 12 Ohio St.3d 185, 189.


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DUI Appeal of the Day (DAD) - "You Are Under Arrest" is not an 'arrest' at Common Law

In Young v. Commonwealth of Virginia, --- S.E.2d ----, 2011 WL 690655 (Va.App.) the defendant was arrested in Virginia. Virginia has a statute that requires, inter alia, that the defendant must be 'arrested' prior to submitting to a blood or breath test. Further, the arrest must occur within 3 hours of the offense for the implied-consent provisions to be applicable. On October 24, 2008, at approximately 7:00 p.m., Young ran a stop sign and crashed into an SUV.FN1 Young's car landed in a ditch with the driver's side door suspended in the air. Emergency personnel extricated him from the passenger side of the vehicle and slid him onto a backboard. Young was bleeding from his head and, according to emergency personnel, had a “very strong” odor of beer emanating from his person. His speech was slurred, and he could not tell them his name. Young became combative and emergency workers “had to tie his arms down” and strap him to the backboard.

At approximately 7:40 p.m., Virginia State Trooper G.F. Finch arrived at the scene and saw Young “fighting the medical personnel.” When he approached, Finch noticed Young had glassy eyes, slurred speech, and a “strong odor of alcoholic beverage on his breath.” When questioned by Trooper Finch, Young admitted he had been drinking prior to driving the vehicle and that the accident occurred at approximately 7:00 p.m. Trooper Finch observed in Young's vehicle two bottles of brandy and a cooler containing two cans of beer, one of which was open.

Trooper Finch followed the ambulance transporting Young to Mary Washington Hospital. They arrived at approximately 9:20 p.m., and Young was promptly admitted. While Young was lying in the hospital bed hooked to IVs, Finch told him he was under arrest and advised him of his Miranda rights and the implied consent law. Finch testified Young was not free to leave at that point. Young verbally consented to have his blood drawn. After Finch took possession of vials of Young's blood, he released Young from custody on a Virginia Uniform Summons pursuant to Code § 19.2-73. At the time of the offense, Code § 19.2-73 provided, in pertinent part, “If any person under suspicion for driving while intoxicated has been taken to a medical facility for treatment or evaluation of his medical condition, the arresting officer at the medical facility may issue ... a summons for a violation of Code § 18.2-266.”

The defendant claims that he was not 'arrested' within the terms of the law because he was not taken into physical custody. he cites to valid caselaw that holds that the mere words of an officer, telling a defendant "You are under arrest" is not sufficient to constitute an arrest:

Under common law, the “mere words of an officer stating to a suspect that he is ‘under arrest’ are not sufficient to constitute an arrest.” Bristol v. Commonwealth, 272 Va. 568, 573, 636 S.E.2d 460, 463 (2006) (citing California v. Hodari D., 499 U.S. 621, 627, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991)).FN3 Quoting from Professor Perkins's seminal work on the subject, Hodari D. held the common law also requires the officer to have some physical contact with the arrestee (even a slight “touching” suffices) or, absent such contact, the arrestee must submit to the officer's assertion of authority. Hodari D., 499 U.S. at 626-27 (citing Rollin M. Perkins, The Law of Arrest, 25 Iowa L.Rev. 201, 206 (1940)); see also Hall v. Commonwealth, 280 Va. 566, 571, 701 S.E.2d 68, 71 (2010), aff'g, 55 Va.App. 451, 686 S.E.2d 554 (2009) (applying these common law principles, holding an individual was in custody for purposes of the escape statute, Code § 18.2-478, when the officer “spoke words of arrest and actually touched Hall for the stated purpose of arrest”).

Ultimately, the Virginia court held that the issuance of the summons, coupled with the words of the arrest, were sufficient earmarks to constitute an arrest. Additionally, the court used the intent of the statute, and under the doctrine of pari materia, looked at other statues dealing with similar actions and found that the intent was to allow catch-and-release summonses as 'arrests' for purposes of the Virginia laws.

The dissent also made valid points:

It is important to note that Trooper Finch issued the summons after the blood sample was taken, and not prior to it.

Because the Virginia Court found that an arrest had occurred prior to the defendant's submission to a blood draw, the Court affirmed the conviction and the admission of the result.

EDITORS NOTE: Although the Virginia Court disagreed with the defense, this argument has some validity. Further, the issue of an arrest also triggers the appropriate probable cause issue at the time of arrest - not afterwards.

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