Fourth Amendment Challenges Ohio OVI/DUI defenses generally involve either a Fourth Amendment constitutional challenge, errors on the part of law enforcement, or other mitigating circumstances.
(A) Fourth Amendment Challenges—The Fourth Amendment to the United States Constitution requires that for every search and seizure of evidence, law enforcement must be in possession of a valid warrant, issued in good faith by a judge or magistrate, particularizing the persons to be searched and the items to be seized.
In the case of an OVI/DUI offense, law enforcement must have probable cause to stop and detain a person allegedly driving a vehicle under the influence of alcohol or substances. Pursuant to ORC § 4511.19, “a vehicle” is generally defined as any moving conduit, including airplanes and ATVs.
Probable cause is defined as any indicia of activity that make the existence or commission an offense or a crime more likely than not. In the case of an OVI/DUI offense, indications that the driver is operating a vehicle while impaired by drugs or alcohol can be deduced from the driver’s demeanor (e.g., slurred speech, glassy eyes, lack of coordination, etc.).
In the context of a vehicle stop, “seizure” inheres in a taking of blood or other samples for the purpose of determining the level of alcohol or substances in the offender’s body. Permissible Stops and Seizures Without a Warrant There are four instances in which such a stop and seizure or taking is permissible in the absence of a warrant:
(1) A Routine, Nonintrusive Stop, during which law enforcement simple stops a vehicle to inquire about routine matters. Invasive procedures, breathalyzer and other testing do not take place. Caveat: Seizures, in any manner, as a consequence of such a stop is impermissible without a warrant.
(2) A “Terry Stop,” pursuant to Terry v. Ohio, in which the court held that police must have a reasonable suspicion, based on “specific, articulable facts,” that criminal activity is afoot. When considering whether there is an OVI/DUI offense at issue, there must be specific, articulable facts to support the reasonable belief (an objective standard) that the offense is in progress (e.g., the offender was driving over the speed limit and exhibits incapacity to focus or speak coherently). Note: Any items seized, incident to the stop, in plain view without a warrant are subject to the dictates of the Fourth Amendment, unless there is an imminent danger to the public safety (see #4).
(3) A Lawful Arrest Upon Probable Cause—As mentioned earlier, probable cause is a reasonable, objective conclusion, based on a deduction of facts, that make it more likely than not that an offense has been committed. If law enforcement observes that an alleged offender’s vehicle is swaying excessively or the driver’s behavior is erratic, there is probable cause to arrest. Vehicle stops and seizures of evidence are permissible without a warrant, incident to that arrest.
(4) Exigent Circumstances are those in which the necessity of immediate action to protect the public or law enforcement’s safety supersedes the alleged offender’s right to Fourth Amendment protections (e.g., the alleged offender’s conduct will likely cause bodily harm or death to another).
(B) Improper Conduct By Law Enforcement, involving coercion, threats, or intimidation, either during the vehicle stop or while testing is in progress, will constitute a valid OVI/DUI offense.
(C) Failure Of law Enforcement to Read Implied Consent Stipulations and Advice, Pursuant to ORC § 4511.191 and ORC 4511.192 regarding the consequences of submitting to a BAC test or other means of determining alcohol or substance levels in the system, and the consequences of an alleged offender’s refusal to submit to such testing.
(D) The Alleged Offender Was Not, In Fact, Abusing Alcohol or Substances but, rather, driving improperly due to the ingestion of prescription or over-the-counter medications for a specified, documentable condition. Alternatively, if the individual does have alcohol or substances in his/her system and can allege involuntariness or mistaken ingestion, these can also be valid defenses to an OVI/DUI charge.
The first order of an OVI/DUI offense is to become acquainted with your rights by consulting with an expert OVI/DUI attorney.