Written by attorney Thomas Gregory Haren

When is there Probable Cause to Arrest for a DUI?

This is re-posted from the Haren Law, LLC website:

Lawyers are always talking about "probable cause." You may be wondering exactly what that phrase means, or where it comes from. I'd like to write about probable cause, and specifically how it applies to DUI or OVI charges. Of course, please remember that no blog post can cover all of the possible unique factual or legal situations, including those applicable to you. Please consult with an attorney to determine if there was probable cause to justify your arrest or the arrest of someone you love.

In order to arrest a person, the police require either a warrant or probable cause. All warrants must be based on probable cause, but obtaining a warrant isn't always practical so the police can arrest a suspect as long as the arrest is justified by that same probable cause.

An individual is entitled to be free from unreasonable search and seizure. Terry v. Ohio. Therefore, evidence that is obtained as a result of an unreasonable seizure must be suppressed. Mapp v. Ohio. If insufficient evidence exists to establish probable cause for a defendant's arrest for driving under the influence of alcohol, any evidence obtained subsequent to that arrest must also be suppressed.

When does the OVI arrest occur?

Whether probable cause existed must be determined at the time that the arrest takes place. In Ohio,an investigatory traffic "stop" turns into an arrest depends on the circumstances of the particular case. An arrest occurs when the following four requisite elements are involved: (1) An intent to arrest, (2) under a real or pretended authority, (3) accompanied by an actual or constructive seizure or detention of the person, and (4) which is so understood by the person arrested.

What does probable cause mean?

Police have probable cause for the arrest if the facts and circumstances within their knowledge were sufficient to cause a prudent person to believe that the suspect had committed the offense. The test for determining whether an officer has probable cause to arrest an individual for driving under the influence is whether, at the moment of the arrest, the officer had sufficient information derived from a reasonably trustworthy source to cause a prudent person to believe that the suspect was driving under the influence.

When are OVI arrests justified by probable cause?

It is, of course, the general rule in Ohio that a misdemeanor must be committed in the presence of a law enforcement officer before the officer may make a warrantless arrest based on the misdemeanor. An arresting officer must not only observe indicia of alcohol consumption, but must also observe some reasonable indicia of operation of a motor vehicle while under the influence of alcohol.

However, in Oregon v. Szakovits, the Ohio Supreme Court held that it was not necessary for an arresting officer to actually witness "bad driving" in order to effect an arrest for driving under the influence of alcohol, which is a first degree misdemeanor per R.C. 4511.99(A), when the officer arrived shortly after an automobile accident, and the defendant appeared intoxicated and admitted operating the vehicle.

Subsequent cases have in effect adopted an "all facts and circumstances" approach to drunken driving arrests. Thus, it is possible to have a valid arrest for driving under the influence of alcohol even though the arresting officer has not actually observed the arrestee operating a vehicle in an erratic or unsafe manner.

When a person is pulled over as part of an investigatory traffic stop, there is no requirement that the driver submit to field sobriety tests. However, the refusal to take the field sobriety tests can be considered when evaluating whether there was probable cause to arrest the driver. That being said, the Ohio Supreme Court held that "[i]n order for the results of a field sobriety test to serve as evidence of probable cause to arrest, the police must have administered the test in strict compliance with standardized testing procedures."

In the State v. Griffin, the Twelfth District Court of Appeals placed a great deal of emphasis upon the fact that the defendant refused to complete the horizontal gaze nystagmus test and also refused to submit to the one-leg stand and walk-and-turn tests. The Twelfth District upheld the defendant's conviction, despite the fact that the officer observed no poor driving and had little, if any, field sobriety test results.

When are OVI arrests not justified by probable cause?

An arrest for OVI based solely on the odor of alcohol on a defendant’s breath, glassy, abnormally shiny eyes and defensive and verbally abusive behavior is unlawful in the absence of evidence of impaired driving or a per se violation (above .08% blood alcohol content, for example). Having a drink and then driving does not always equal OVI. Where a police officer does not observe the arrestee driving in an erratic or unsafe manner, had not witnessed impaired motor coordination, and had not instructed the arrestee to perform field sobriety tests, the officer does not have probable cause to arrest the driver; the mere appearance of drunkenness (bloodshot eyes, slurred speech, the odor of alcohol) is not sufficient to constitute probable cause for arrest for driving under the influence.

However, an officer may stop a suspect for reasons unrelated to erratic driving and then discover impaired coordination which subsequently forms the basis for an OVI charge.

If you or a loved one need to speak to an Ohio DUI/OVI defense attorney, you may contact Thomas G. Haren with Haren Law, LLC at (216) 503-2232 for a free consultation.

Please remember that this is not legal advice. It is provided for informational purposes only.

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