A Rare Victory

A Mahoning County Court of Appeals decision is a rare ray of light to Criminal Defense attorneys. Published on October 8 of this year, the Court of Appeals decision in State v. Derov, 2009-Ohio-5513 seems to fly in the face of the wishes of MADD and the steady erosion of individual rights in the area of O.V.I. law. This case involves a woman who was arrested for O.V.I. after the arresting officer noted the "strong odor of alcohol" and the defendant's "bloodshot eyes" and an admission of drinking one beer earlier in the evening. The trooper based the arrest on her poor performance on field sobriety tests and a portable breathalyzer test. During the hearing on the Defendant's Motion to Suppress it became evident that the officer had not performed the field sobriety tests properly, and had also not witnessed any bad driving prior to stopping her. The court held that the officer lacked probable cause to place the Defendant under arrest.

This is surprising in some respects even though it is the proper result. In many cases there is a distinction for purposes of probable cause between a defendant with a "strong" "moderate" or "slight" odor of alcoholic beverages on their breath. This is despite that fact that the strength of the smell is in no way related to the blood alcohol level of the subject, or the level of impairment. So, someone with a "strong" odor could have a lower blood alcohol level or be more impaired than someone exhibiting only a "slight" odor. Additionally, courts are usually very deferential to officers conduct of field sobriety tests, and are loathe to suppress the results. Here, the officer completed the horizontal gaze nystagmus, or eye test, in less than the required time to complete the test, and gave improper instructions on the walk and turn test. The only test that was administered properly, the one-legged stand, the defendant passed.

The portable breath test was also discounted in this case. Portable breath tests are not approved for evidentiary purposes in Ohio. They have been in the past, but are not now. Ostensibly, this is because they are not sufficiently reliable to be used as evidence in court. If that is the case, then why should they be approved to assist an officer in deciding whether or not to make a warrantless arrest of a citizen? It does not make sense, but in Franklin County, that is permissible. Hopefully this case will be the beginning of the end for that practice. Unfortunately, it may go the other way and prompt the approval of these suspect devices for evidential purposes.

Of course, the outcome of this case was very fact specific, and some of the outcomes may not apply in all O.V.I. cases. If you have questions, please give me a call at Yavitch & Palmer.