Thank you to Regent Troy McKinney for delivering this gem to DAD last week. When does an arrest occur following alleged drunk driver being taken to the hospital due to crash injuries? Last week DAD discussed a Georgia case of Buford v. State of Georgia, --- S.E.2d ----, 2011 WL 5248199 (Ga.App.) where, faced with a similar set of facts, the court found an arrest had occurred prior to a blood draw (thus making the results admissible in court). In State of Ohio v. Rawnsley Slip Copy, 2011 WL 5319863 (Ohio App. 2 Dist.), 2011 -Ohio- 5696, a trial court suppressed a blood test where the driver was taken to a hospital following a two-vehicle crash.
The pertinent facts and findings were stated as follows:
“The ‘Consequences of Test and Refusal’ language informed Ms. Rawnsley that she was under arrest for an OVI violation and further informed her of the consequences if she refused to take a blood alcohol test. The reality, however, is that when Ms. Rawnsley was read the BMV 2255 language she was not under arrest. Officer Fosnight, again very forthrightly, was adamant on this issue at both the February 3 and February 25 hearings. It seems that a primary reason Ms. Rawnsley was not arrested is the Huber Heights Police Department's practice of not arresting an individual who is being admitted to the hospital. This practice is driven, it seems, by the possibility that Huber Heights will incur some type of financial responsibility for an arrestee's medical care. Ms. Rawnsley, upon being read the BMV 2255 language, agreed to a blood draw."
The appellate court, agreeing with the trial court that the defendant was not in fact under arrest prior to consenting to the draw, found that state law was violated and the result was inadmissible under implied consent. The appellate court then had to deal with the State's alternate argument, namely that there was probable cause and exigent circumstances for the blood draw, so therefore the results were still admissible.
Holding that there was not justification for ignoring the requirement of a warrant , the opinion reads as follows:
The general problem of stale evidence in connection with blood alcohol concentrations, addressed in Schmerber v. California, has been codified in the Ohio Revised Code. For a test result to be admissible, the blood draw must take place within three hours of the alleged violation. R.C. 4511.19(D)(1)(b).
"With regard to exigent circumstances, the trial court concluded:
“Officer Fosnight, as he forthrightly admitted, did not consider making any effort to obtain a warrant. It seems to this court that the Huber Heights Police, in order to establish an exigent circumstance, had the obligation, particularly since the collision occurred not in the early morning hours but at approximately 10:55 p.m., to draft a probable cause affidavit and attempt to reach a judge, or to at least explain why this was not practical. If, after a good faith effort, such an attempt was unavailing, this court, without hesitation, would conclude that exigent circumstances existed. However, without such an attempt, or any explanation concerning why such an attempt was not practical, this court cannot conclude that exigent circumstances existed. FN$
“FN 4. The case of State v. Hollowell [, Montgomery App. No. 24010,] 2011–Ohio–1130 provides an example where the Montgomery County Sheriff's Department, using two deputies, were able to obtain a warrant to obtain a blood draw within the three hour period prescribed by O.R.C. 4511.19(D)(1)(b).”
"Essentially, the trial court found that the State had failed in its burden to prove the existence of exigent circumstances justifying a warrantless search. The evidence in the record supports the trial court's finding that Officer Fosnight responded to the scene within one minute of the collision. He was promptly made aware of circumstances establishing probable cause to believe that Rawnsley, the sole occupant of the front portion of one of the vehicles involved in the collision, was under the influence. Given these facts, we cannot say that the trial court's finding that the State failed in its burden of proving the existence of exigent circumstances is against the manifest weight of the evidence."
Editor's Note: The Rawnsley case is IMHO valuable on two points as described above. First, that the mere reading of an implied consent advisory which contains language telling a person that one is under arrest, does not necessarily make it so, and secondly, that exigent circumstances does not automatically exist merely because blood alcohol dissipates over time.
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Showing posts with label Ohio. Show all posts
Showing posts with label Ohio. Show all posts
Tuesday, November 22, 2011
Thursday, October 20, 2011
DUI Law - Ohio Says Reasonable Suspicion Means More than Mere Odor
In State of Ohio v. Santiago, Slip Copy, 2011 WL 4863973 (Ohio App. 2 Dist.), 2011 -Ohio- 5292, the defendant was arrested for DUI and during an inventory search drugs were found in the glovebox. On appeal the defendant contested, inter alia, the basis for the request to submit to field sobriety testing. The defendant agreed that the initial stop for a minor traffic offense (driving left of center) was lawful, but he contended that the additional request for the performance of filed sobriety tests was not supported by ample reasonable suspicion. The Ohio Court first examined precedent:
"In the cases upon which Santiago relies, we have held that an odor of alcohol, coupled with a de minimus traffic violation, glassy or bloodshot eyes, and an admission to having consumed one or two beers, was insufficient to create a reasonable articulable suspicion of driving under the influence and therefore to justify further detention in order to conduct field sobriety tests. Spillers, supra; State v. Dixon (Dec. 1, 2000), Greene App. No.2000–CA–30. See, also, State v. Swartz, Miami App. No.2008CA31, 2009–Ohio–902. This court has held, however, that a strong odor of an alcoholic beverage, without other significant indicia of intoxication, may be sufficient to provide an officer with reasonable suspicion of driving under the influence. See State v. Marshall, Clark App. No.2001CA35, 2001–Ohio–7081 (holding that “strong” odor of alcohol, coupled with high speed and red eyes, created reasonable suspicion justifying field sobriety tests); State v. Schott (May 16, 1997), Darke App. No. 1415 (holding that a strong odor of alcohol alone can create reasonable, articulable suspicion of intoxication adequate to require an individual to submit to field sobriety tests).
"Whether an officer had reasonable articulable suspicion to administer field sobriety tests is a “very fact-intensive” determination. State v. Wells, Montgomery App. No. 20798, 2005–Ohio–5008, ¶ 9. We determine the existence of reasonable suspicion of criminal activity by evaluating the totality of the circumstances, considering those circumstances “through the eyes of the reasonable and prudent police officer on the scene who must react to events as they unfold.” State v. Heard, Montgomery App. No. 19323, 2003–Ohio–1047, ¶ 14, quoting State v.. Andrews (1991), 57 Ohio St.3d 86, 87–88."
The court then recited the applicable facts in the instant appeal:
"At the suppression hearing, Officer Kunkleman testified that he observed Santiago “driving left of center, driving down the middle of the roadway” in the early morning hours of December 6, 2009; there were two passengers in the car. Kunkleman followed the car through several turns in a residential area, but did not observe any additional traffic violations. The car pulled over twice, but no one got out, a circumstance that Kunkleman found “suspicious.” When one person did get out of the car and walk between houses, Kunkleman decided to initiate contact with the driver (Santiago). Kunkleman testified that Santiago's eyes were “tired” and “glassy” and that an “odor of alcohol” was coming from the vehicle. While Santiago was in the car, Kunkleman could not determine whether the odor was coming from Santiago or from his passenger. Santiago denied that he had been drinking, but Kunkleman observed a bottle of gin in the back seat; the bottle was half empty but capped, and the passenger claimed ownership of the bottle of gin. Santiago attempted to put his keys back in the ignition as if to start the car while talking with Kunkleman, and he argued with Kunkleman about getting out of the car, although he eventually did so. When Santiago stepped out of the vehicle at Kunkleman's request, Kunkleman determined that he (Kunkleman) could “smell alcohol on, an alcoholic beverage on his breath now, or the odor of an alcoholic beverage” on Santiago."
The court then concluded that reasonable suspicion existed:
"The odor of an alcoholic beverage emanating from Santiago's vehicle, the bottle of alcohol visible within the vehicle, Santiago's tired and glassy eyes, his traffic violation and suspicious behavior in pulling off the road two times, and his somewhat uncooperative attitude toward Officer Kunkleman justified further investigation. Moreover, when Santiago exited the vehicle, Kunkleman was able to determine that he (Santiago)—independent of the car or someone else in the car—smelled of an alcoholic beverage. Under the totality of the circumstances, Officer Kunkleman had a reasonable articulable suspicion that Santiago was driving under the influence, which justified his further detention for field sobriety tests.
The opinion also noted that other Ohio courts have similarly held that certain traffic violations, coupled with glassy eyes, an odor of alcohol, and open or partially consumed alcohol inside a vehicle created a reasonable articulable suspicion justifying further investigation. See State v. Purtee, Logan App. No. 8–04–10, 2006–Ohio–6337; Strongsville v. Minnillo, Cuyahoga App. No. 80948, 2003–Ohio–162.
"In the cases upon which Santiago relies, we have held that an odor of alcohol, coupled with a de minimus traffic violation, glassy or bloodshot eyes, and an admission to having consumed one or two beers, was insufficient to create a reasonable articulable suspicion of driving under the influence and therefore to justify further detention in order to conduct field sobriety tests. Spillers, supra; State v. Dixon (Dec. 1, 2000), Greene App. No.2000–CA–30. See, also, State v. Swartz, Miami App. No.2008CA31, 2009–Ohio–902. This court has held, however, that a strong odor of an alcoholic beverage, without other significant indicia of intoxication, may be sufficient to provide an officer with reasonable suspicion of driving under the influence. See State v. Marshall, Clark App. No.2001CA35, 2001–Ohio–7081 (holding that “strong” odor of alcohol, coupled with high speed and red eyes, created reasonable suspicion justifying field sobriety tests); State v. Schott (May 16, 1997), Darke App. No. 1415 (holding that a strong odor of alcohol alone can create reasonable, articulable suspicion of intoxication adequate to require an individual to submit to field sobriety tests).
"Whether an officer had reasonable articulable suspicion to administer field sobriety tests is a “very fact-intensive” determination. State v. Wells, Montgomery App. No. 20798, 2005–Ohio–5008, ¶ 9. We determine the existence of reasonable suspicion of criminal activity by evaluating the totality of the circumstances, considering those circumstances “through the eyes of the reasonable and prudent police officer on the scene who must react to events as they unfold.” State v. Heard, Montgomery App. No. 19323, 2003–Ohio–1047, ¶ 14, quoting State v.. Andrews (1991), 57 Ohio St.3d 86, 87–88."
The court then recited the applicable facts in the instant appeal:
"At the suppression hearing, Officer Kunkleman testified that he observed Santiago “driving left of center, driving down the middle of the roadway” in the early morning hours of December 6, 2009; there were two passengers in the car. Kunkleman followed the car through several turns in a residential area, but did not observe any additional traffic violations. The car pulled over twice, but no one got out, a circumstance that Kunkleman found “suspicious.” When one person did get out of the car and walk between houses, Kunkleman decided to initiate contact with the driver (Santiago). Kunkleman testified that Santiago's eyes were “tired” and “glassy” and that an “odor of alcohol” was coming from the vehicle. While Santiago was in the car, Kunkleman could not determine whether the odor was coming from Santiago or from his passenger. Santiago denied that he had been drinking, but Kunkleman observed a bottle of gin in the back seat; the bottle was half empty but capped, and the passenger claimed ownership of the bottle of gin. Santiago attempted to put his keys back in the ignition as if to start the car while talking with Kunkleman, and he argued with Kunkleman about getting out of the car, although he eventually did so. When Santiago stepped out of the vehicle at Kunkleman's request, Kunkleman determined that he (Kunkleman) could “smell alcohol on, an alcoholic beverage on his breath now, or the odor of an alcoholic beverage” on Santiago."
The court then concluded that reasonable suspicion existed:
"The odor of an alcoholic beverage emanating from Santiago's vehicle, the bottle of alcohol visible within the vehicle, Santiago's tired and glassy eyes, his traffic violation and suspicious behavior in pulling off the road two times, and his somewhat uncooperative attitude toward Officer Kunkleman justified further investigation. Moreover, when Santiago exited the vehicle, Kunkleman was able to determine that he (Santiago)—independent of the car or someone else in the car—smelled of an alcoholic beverage. Under the totality of the circumstances, Officer Kunkleman had a reasonable articulable suspicion that Santiago was driving under the influence, which justified his further detention for field sobriety tests.
The opinion also noted that other Ohio courts have similarly held that certain traffic violations, coupled with glassy eyes, an odor of alcohol, and open or partially consumed alcohol inside a vehicle created a reasonable articulable suspicion justifying further investigation. See State v. Purtee, Logan App. No. 8–04–10, 2006–Ohio–6337; Strongsville v. Minnillo, Cuyahoga App. No. 80948, 2003–Ohio–162.
Tuesday, June 21, 2011
DUI Appeal - Ohio Says BMV Records Violate law
This is the second installment in a three-part DAD discussion of government records admissibility and/or confrontation clause issues. The case of State of Ohio v. Lee, 191 Ohio App.3d 219, 945 N.E.2d 595, 2010 -Ohio- 6276, was provided to DAD by NCDD member Jeff Meadows. Here, the defendant appealed his conviction based in part on the alleged erroneous admission of defendant's Bureau of Motor Vehicles (BMV) record (transcript) which was used to prove five prior OVI convictions. The appeals court agreed, and held that the records were not sufficiently 'certified' to allow them to be introduced under particular business records or public records exceptions. Since they were not so 'certified', the court held that their admission without live testimony to otherwise authenticate the documents violated the confrontation clause.
In Ohio, Evid.R. 901 provides that authentication or identification of a piece of evidence is a condition precedent to the admissibility of that evidence. Evid.R. 902 lists certain items that are self-authenticating so as to negate the need for any extrinsic evidence in support of the item's admissibility. An item that is not self-authenticating must be properly authenticated by other means.
The defendant on appeal argued that the transcript was neither properly certified nor sufficient to be self-authenticating because it was not authenticated by a live witness and did not contain a notarization, signature, or affidavit from an individual at the BMV. According to the court's recital of the evidence:
"The transcript in this case is accompanied by a cover page stating that “[t]his certifies that a search has been made of the files and records of the Ohio Registrar of Motor Vehicles; that the attached documents are true and accurate copies of the files or records of the Registrar; and that the Registrar's official seal has been affixed in accordance with the Ohio Revised Code (R.C.) 4501.34(A), which states in part: ‘[The Registrar] shall adopt a seal bearing the inscription: Motor Vehicle Registrar of Ohio. The seal shall be affixed to all writs and authenticated copies of records, when it has been so attached, such copies shall be received in evidence with the same effect as other public records. All courts shall take judicial notice of the seal.’ ” Further, the cover page contains an official seal, which was printed on the document."
In holding that the record was inadmissible, the court stated:
"However, no individual or employee of the Bureau of Motor Vehicles is identified on the document as certifying the record and there is no signature, notarization, or affidavit attesting to the record's authenticity. The cover page contains a notation indicating that the record may have been created “By: TVNSICKL.” Yet no further information is given to suggest the identity of this individual, the individual's position at the BMV, or the individual's knowledge of appellant's driving record. Absent such information and a signature attesting to the record's authenticity, the document does not qualify as a certified record under R.C. 2945.75(B). Moreover, R.C. 4501.34(A) allows for BMV records to be admitted into evidence, but it similarly requires that these records be “authenticated.” Without identification of an individual attesting to the record's authenticity or a signature providing for the records authenticity, no “authentication” exists. See Evid.R. 901. Like the state in McCallum, the prosecution in this case attempted to introduce appellant's BMV record through the testimony of the arresting officer, but, as in McCallum, the officer is not an individual capable of authenticating the record because he had no personal knowledge of the contents of the exhibit."
As far as the inadmissibility of the document under the other statutory provisions, the court stated:
Further, Evid.R. 902 allows certain types of evidence to be admitted as self-authenticating. The BMV record in this case does not qualify under any category of self-authenticating evidence. The applicable provisions of Evid.R. 902 under which a BMV record could arguably qualify provide as follows:
“(1) Domestic public documents under seal. A document bearing a seal purporting to be that of * * * any State * * * or of a political subdivision, department, officer, or agency thereof, and a signature purporting to be an attestation or execution.
“(2) Domestic public documents not under seal. A document purporting to bear the signature in the official capacity of an officer or employee of any entity included in paragraph (1) hereof, having no seal, if a public officer having a seal and having official duties in the district or political subdivision of the officer or employee certifies under seal that the signer has the official capacity and that the signature is genuine. * * *
“(4) Certified copies of public records. A copy of an official record or report or entry therein, or of a document authorized by law to be recorded or filed and actually recorded or filed in a public office, including data compilations in any form, certified as correct by the custodian or other person authorized to make the certification, by certificate complying with paragraph (1), (2), or (3) of this rule or complying with any law of a jurisdiction, state or federal, or rule prescribed by the Supreme Court of Ohio. * * *
“(8) Acknowledged documents. Documents accompanied by a certificate of acknowledgment executed in the manner **603 provided by law by a notary public or other officer authorized by law to take acknowledgments. * * *
“(10) Presumptions created by law. Any signature, document, or other matter declared by any law of a jurisdiction, state or federal, to be presumptively or prima facie genuine or authentic.”
The appeals court explained why the document did not qualify as a self-authenticating document as follows:
"Subsections (1) and (2) of Evid.R. 902 both require an accompanying signature. As described above, the BMV record in this case bears no signature. Subsection (4) states that the record must be accompanied by an acknowledgement from a “custodian or other person authorized to make the certification.” There is no indication on the BMV record that a custodian or authorized individual certified the record. The section also refers to subsections (1), (2), and (3), which require accompanying signatures. Subsections (8) and (10) refer to documents executed or declared by law to be authentic. In this case, the applicable Ohio law for authenticating BMV records is R.C. 4501.34(A). As previously discussed, the BMV record does not comply with R.C. 4501.34(A). Accordingly, the BMV record submitted in this case does not qualify as a self-authenticating document under Evid.R. 902."
Editor's Note: In a prior case mentioned in the opinion (McCallum) the cover page certification document contained a name but not a seal, whereas here the cover page contained a seal but not a name. Over the course of time it appears that both the Bureau of Motor Vehicles became lazy with the certifications, until they simply failed to strictly comply with the law. It would be prudent, in light of the above, to review your own Motor Vehicle documents to see if the same deficiencies exist.
Looking for a Top DUI DWI Attorney? Visit Americas Top DUI and DWI Attorneys at http://www.1800dialdui.com or call 1-800-DIAL-DUI to find a DUI OUI DWI Attorney Lawyer Now!
In Ohio, Evid.R. 901 provides that authentication or identification of a piece of evidence is a condition precedent to the admissibility of that evidence. Evid.R. 902 lists certain items that are self-authenticating so as to negate the need for any extrinsic evidence in support of the item's admissibility. An item that is not self-authenticating must be properly authenticated by other means.
The defendant on appeal argued that the transcript was neither properly certified nor sufficient to be self-authenticating because it was not authenticated by a live witness and did not contain a notarization, signature, or affidavit from an individual at the BMV. According to the court's recital of the evidence:
"The transcript in this case is accompanied by a cover page stating that “[t]his certifies that a search has been made of the files and records of the Ohio Registrar of Motor Vehicles; that the attached documents are true and accurate copies of the files or records of the Registrar; and that the Registrar's official seal has been affixed in accordance with the Ohio Revised Code (R.C.) 4501.34(A), which states in part: ‘[The Registrar] shall adopt a seal bearing the inscription: Motor Vehicle Registrar of Ohio. The seal shall be affixed to all writs and authenticated copies of records, when it has been so attached, such copies shall be received in evidence with the same effect as other public records. All courts shall take judicial notice of the seal.’ ” Further, the cover page contains an official seal, which was printed on the document."
In holding that the record was inadmissible, the court stated:
"However, no individual or employee of the Bureau of Motor Vehicles is identified on the document as certifying the record and there is no signature, notarization, or affidavit attesting to the record's authenticity. The cover page contains a notation indicating that the record may have been created “By: TVNSICKL.” Yet no further information is given to suggest the identity of this individual, the individual's position at the BMV, or the individual's knowledge of appellant's driving record. Absent such information and a signature attesting to the record's authenticity, the document does not qualify as a certified record under R.C. 2945.75(B). Moreover, R.C. 4501.34(A) allows for BMV records to be admitted into evidence, but it similarly requires that these records be “authenticated.” Without identification of an individual attesting to the record's authenticity or a signature providing for the records authenticity, no “authentication” exists. See Evid.R. 901. Like the state in McCallum, the prosecution in this case attempted to introduce appellant's BMV record through the testimony of the arresting officer, but, as in McCallum, the officer is not an individual capable of authenticating the record because he had no personal knowledge of the contents of the exhibit."
As far as the inadmissibility of the document under the other statutory provisions, the court stated:
Further, Evid.R. 902 allows certain types of evidence to be admitted as self-authenticating. The BMV record in this case does not qualify under any category of self-authenticating evidence. The applicable provisions of Evid.R. 902 under which a BMV record could arguably qualify provide as follows:
“(1) Domestic public documents under seal. A document bearing a seal purporting to be that of * * * any State * * * or of a political subdivision, department, officer, or agency thereof, and a signature purporting to be an attestation or execution.
“(2) Domestic public documents not under seal. A document purporting to bear the signature in the official capacity of an officer or employee of any entity included in paragraph (1) hereof, having no seal, if a public officer having a seal and having official duties in the district or political subdivision of the officer or employee certifies under seal that the signer has the official capacity and that the signature is genuine. * * *
“(4) Certified copies of public records. A copy of an official record or report or entry therein, or of a document authorized by law to be recorded or filed and actually recorded or filed in a public office, including data compilations in any form, certified as correct by the custodian or other person authorized to make the certification, by certificate complying with paragraph (1), (2), or (3) of this rule or complying with any law of a jurisdiction, state or federal, or rule prescribed by the Supreme Court of Ohio. * * *
“(8) Acknowledged documents. Documents accompanied by a certificate of acknowledgment executed in the manner **603 provided by law by a notary public or other officer authorized by law to take acknowledgments. * * *
“(10) Presumptions created by law. Any signature, document, or other matter declared by any law of a jurisdiction, state or federal, to be presumptively or prima facie genuine or authentic.”
The appeals court explained why the document did not qualify as a self-authenticating document as follows:
"Subsections (1) and (2) of Evid.R. 902 both require an accompanying signature. As described above, the BMV record in this case bears no signature. Subsection (4) states that the record must be accompanied by an acknowledgement from a “custodian or other person authorized to make the certification.” There is no indication on the BMV record that a custodian or authorized individual certified the record. The section also refers to subsections (1), (2), and (3), which require accompanying signatures. Subsections (8) and (10) refer to documents executed or declared by law to be authentic. In this case, the applicable Ohio law for authenticating BMV records is R.C. 4501.34(A). As previously discussed, the BMV record does not comply with R.C. 4501.34(A). Accordingly, the BMV record submitted in this case does not qualify as a self-authenticating document under Evid.R. 902."
Editor's Note: In a prior case mentioned in the opinion (McCallum) the cover page certification document contained a name but not a seal, whereas here the cover page contained a seal but not a name. Over the course of time it appears that both the Bureau of Motor Vehicles became lazy with the certifications, until they simply failed to strictly comply with the law. It would be prudent, in light of the above, to review your own Motor Vehicle documents to see if the same deficiencies exist.
Looking for a Top DUI DWI Attorney? Visit Americas Top DUI and DWI Attorneys at http://www.1800dialdui.com or call 1-800-DIAL-DUI to find a DUI OUI DWI Attorney Lawyer Now!
Friday, June 03, 2011
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.
Looking for a Top DUI DWI Attorney? Visit Americas Top DUI and DWI Attorneys at http://www.1800dialdui.com or call 1-800-DIAL-DUI to find a DUI OUI DWI Attorney Lawyer Now!
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.
Looking for a Top DUI DWI Attorney? Visit Americas Top DUI and DWI Attorneys at http://www.1800dialdui.com or call 1-800-DIAL-DUI to find a DUI OUI DWI Attorney Lawyer Now!
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