Speeding Late At Night Can Lead to Field Sobriety Tests

An Ohio Appeals Court has held that a speeding stop late at night can permit an officer to ask the driver to step out of the car for field sobriety tests.

The case is State v. Mossman, 2014-Ohio-2620.

Trooper Robert C. Bradley, Jr observed the defendant at approximately 2:15 a.m. driving 59 miles per hour in a 35-miles-per-hour zone.  The trooper stopped the defendant on the side of a freeway.

Upon approaching the defendant, the trooper smelled a strong odor of an alcoholic beverage.  The Defendant told the trooper that she had had “some”  to drink about thirty minutes ago.  The trooper asked the defendant to perform field sobriety tests, including horizontal and vertical gaze nystagmus examinations, a one-leg stand test, and a walk-and-turn test. He also asked appellee to recite the alphabet, starting with B and ending at T.   The trooper then arrested the defendant for drunk driving.

The question before the court was whether the the Trooper had probable cause to detain the Defendant for administration of the field sobriety tests.  This issue arose because the Trooper observed no signs of impaired driving.   Speeding is not an indicator of impaired driving.

In Ohio, an officer can legally detain a driver to administer field sobriety tests if there is reasonable suspicion that the driver is operating a vehicle under the influence of alcohol.   In this case, the court concluded that the Trooper did, in fact, have reasonable suspicion.  The court said:

[The defendant] was driving well in excess of the 35- miles- per-hour limit, the trooper stopped her at approximately 2 a.m. on a Sunday morning, the trooper discerned an odor of alcohol in the vehicle, and [the driver] acknowledged having been drinking.

The take away:  a simple traffic violation, combined with an odor of alcohol and an admission that the driver has been drinking is enough to permit an officer to ask a driver to step out of the vehicle to performs field sobriety tests.

This case illustrates that the law on drunk driving in Ohio is constantly in flux, and each case turns on its individual facts.

Important: Supreme Court Rules That Police Can Not Search Smart Phones

The United States Supreme Court has held that police generally may not, without a warrant, search digital information on a cell phone seized from an individual who has been arrested.

Read the opinion here: 13-132_8l9c

360px-Seal_of_the_United_States_Supreme_Court.svgPolice and prosecutors had argued that cell phones were just like other objects found in a person’s pocket.  The law has been clear about what happens when someone is arrested: under the “search incident to arrest doctrine,” the police can search the contents of anything in an arrested person’s possession or within reach.  This means that the police could search an address book found in someone’s pocket, or the contents of a purse found on a woman who had been arrested.  And it did not matter why the person was arrested.

In practical terms, this meant that if a person was arrested for a minor offense – such as, for example, speeding a school zone in Ohio – then the police could serach through the entire contents of the person;s cell phone.

The Supreme Court rejected this idea.  The Court wrote:

That is like saying a ride on horseback is materially indistinguishable from a flight to the moon. Both are ways of getting from point A to point B, but little else justifies lumping them together. Modern cell phones, as a category, implicate privacy con- cerns far beyond those implicated by the search of a cigarette pack, a wallet, or a purse. A conclusion that inspect- ing the contents of an arrestee’s pockets works no substantial additional intrusion on privacy beyond the arrest itself may make sense as applied to physical items, but any extension of that reasoning to digital data has to rest on its own bottom.

Cell phones differ in both a quantitative and a qualitative sense from other objects that might be kept on an arrestee’s person. The term “cell phone” is itself mislead- ing shorthand; many of these devices are in fact minicomputers that also happen to have the capacity to be used as a telephone. They could just as easily be called cameras, video players, rolodexes, calendars, tape recorders, libraries, diaries, albums, televisions, maps, or newspapers.

A number of years ago, Michael K. Allen & Associates attorney Joshua Engel predicted this outcome. In a law review article (Doctrinal Collapse), Engel wrote that courts were likely to not stretch the searh incident =to arrest doctrine to include cell phones.

Violation of Protection Order Conviction Reversed Because State Did Not Present Proper Evidence

An Ohio Court of Appeals in Cincinnati has thrown out a conviction for violation of a protection order.  The State, the court found, had not proven that the defendant was aware of the contents of the Order.

The case is State v. Phillips, 2014-Ohio-2614.

restraining-orderThe defendant was convicted of violation of a protection order.  In order to be convicted of violating a protection order, the state must show that the defendant was aware of the contents of the order.  In most cases, this is accomplished by showing that the sheriff delivered a copy of the protection order to the defendant.

At the trial, the State introduced a document entitled “County Writ Hamilton County Sheriff’s Department” that was meant to demonstrate that the defendant had been personally served with a copy of the protection order.

The document was a printout of a public record from the clerk of court’s website.  However, a printout is not a “certified copy” as required by the Ohio Rules of Evidence.  A certified copy just be an original produced by the clerk with a seal; a photocopy of the document with a seal is not sufficient.

The defendant’s conviction was reversed because without the document from the clerk’s website, the State did not have any evidence that the Defendant was actually aware of the terms of the protection order.


Mike Allen on 700WLW Talking About the Ruling in the Sarah Jones Defamation Case

Listen to Mike Allen talk with Bill Cunningham about the Sarah Jones case.

How Long Can Police Detain A Motorist? Ohio Appeals Court Throws Out Evidence


The case is State v. Casey, 2014-Ohio-2586.

The Defendant was originally convicted of possession of marijuana and possession of marijuana drug paraphernalia.

In December, 2012, an Officer observed the Defendant operating car without a rear bumper and with a dangling rear license plate. The officer stopped the vehicle and, believing the Defendant to be intixicated asked him to step outside of the vehicle to perform field sobriety tests.

The Defendant passed the field sobriety tests. Instead of letting the Defendant go, the officer asked whether there was anything illegal in the vehicle, such as drugs or weapons.

Car SearchAccording to the officer, the Defendant became very nervous, began shifting his gaze between the police cruiser and his vehicle, and also avoided making eye contact. The Defendant refused to give consent, so the officer requested a canine unit and placed the Defendant in the back of the police cruiser. Approximately ten to 15 minutes later, the canine arrived. The Defendant admitted that he had marijuana and a pipe in the vehicle’s center console. The dog alerted to the presence of marijuana in the vehicle and a subsequent search of the vehicle yielded a bag of marijuana, a marijuana pipe, and a set of scales.

The Court of Appeals found that the Officer Christian did not have reasonable suspicion to extend the detention after the Defendant passed the field sobriety tests.  The law on this issue is well established: when a law enforcement officer stops a vehicle for a traffic violation, the officer may detain the motorist for a period of time sufficient to issue the motorist a citation and to perform routine procedures such as a computer check on the motorist’s driver’s license, registration, and vehicle plates.

In this case, the initial stop and the detention of the driver for field sobriety tests was permissible. The “sniff” by the dog was also permissible.  However, the court concluded: The Officer “did not have new articulable reasonable suspicion to continue the Defendant’s detention following the completion of the field sobriety tests.”

The court explained:

the Defendant’s continued detention was not based on the amount of time needed to effectuate a traffic stop. Rather, the testimony presented at the suppression hearing indicates that the Defendant was detained following the completion of the field sobriety tests, so that [the] Officer could determine whether the Defendant had guns or drugs in the vehicle. In other words, . . . the Defendant’s continued detention was not based on the original purpose of the traffic stop for the bumper violation under R.C. 4513.021 or to issue a citation for that infraction. Instead, the Defendant’s continued detention was based on matters unrelated to the purpose of the original stop and constituted an extension of the traffic stop in order to conduct a canine sniff.

Since the Defendant was detained in viola ion of the Constitution, the court threw out all of the evidence under the exclusionary rule.

Supreme Court Poised To Make Pivotal Decision on Breath Testing

The Ohio Supreme Court heard its first Intoxilyzer 8000 case on June 11, 2014.  And Michael K. Allen attorney Mary Martin played a pivotal role in the case.

The case is City of Cincinnati v. Daniel Ilg.

The Intoxilyzer 8000 is the newest breath testing instrument in the State of Ohio.  Implemented by the State of Ohio in 2009, the Intoxilyzer has faced a significant amount of challenges in drunk driving (DUI/DWI/OVI) cases.

Daniel Ilg’s case started with his arrest for OVI in October of 2011.  Mr. Ilg was tested using the Intoxilyzer 8000 and blew a .143, well above the legal limit in Ohio of .08.  After his arrest, his attorney requested through discovery all the COBRA data for the Intoxilyzer 8000.  Basically, the COBRA data is all data associated with every breath tested on all of the Intoxilyzers.  The State was unable to provide the data to the defense.  A hearing was conducted on the Defendant’s Motion to Compel.

Mary Martin, Of Counsel

Mary Martin, Of Counsel

In her former position as the Director of Alcohol and Drug Testing, Michael K. Allen & Associates attorney Mary Martin was the only witness to testify at the Motion to Compel.  Mary Martin has been recognized by Ohio courts as knowledgeable on the Intixilyzer 8000 issues. She testified that the Ohio Department of Health was unable to comply with the Defendant’s request.  The Court sanctioned the State of Ohio by suppressing the breath test results in Mr. Ilg’s case.

The City of Cincinnati, appealed to the First District Court of Appeals, which upheld the trial court’s decision.  The City of Cincinnati, then Appealed to the Ohio Supreme Court.

During the oral argument, the City of Cincinnati argued that the Department of Health is tasked by statute to determine the reliability of breath testing instruments.  In addition, Ms. Bishop the Assistant Prosecuting Attorney argued that the evidence requested by the Defense was inadmissible and thus not discoverable.

The Defendant argued that the evidence is needed to provide the information to an expert to help determine if the Defense’s test is reliable.

The Court was a very active bench asking several thought provoking questions.  The Court is perched make the most pivotal decision on Ohio drunk driving law in decades.

A video of the oral argument is available here.

A decision is expected in the fall.

Ohio Supreme Court Limits Tampering with Evidence Prosecutions

The Ohio Supreme Court has held  that a person cannot be convicted for tampering with evidence unless the defendant intended to prevent the evidence from being used in an ongoing or likely proceeding.

The case is State v. Straley, 2014-Ohio-2139.

In an opinion sure to felt throughout the state, the Ohio Supreme Court reached a decision today in a case involving requirements for a conviction of tampering with evidence pursuant to ORC 2921.12(a)(1) during a criminal investigation.

In Clark County Ohio, plain clothes narcotic officers in an unmarked police cruiser observed a vehicle go left of center.  Although they were not on traffic duty, the officers initiated a traffic stop based on public safety concerns.  Officer’s observed the defendant alone in her car and noted the smell of alcohol on her person as well as her slurred speech.  The officers obtained consent to search her vehicle, but no contraband was found.

The Officers decided not to pursue charges and attempted to arrange alternate transportation for the defendant.  The defendant indicated she needed to use the restroom and began to walk away.  She walked twenty feet from officers and urinated.  Officer’s maintained visual contact with her while she urinated through “peripheral vision” to avoid looking directly at her.

Later, an Officer walked by where the defendant had urinated.  He found a small baggie of crack cocaine covered in urine.  The defendant was placed under arrest and charged with, among other things, tampering with evidence in connection with the baggie.

Tampering with evidence is a in violation of R.C. 2921.12(A)(1), which provides: “No person, knowing that an official proceeding or investigation is in progress, or is about to be or likely to beinstituted, shall do any of the following: (1) Alter, destroy, conceal, or remove any record, document, or thing, with purpose to impair its value or availability as evidence in such proceeding or investigation . . . ..”

The issue before the Court was whether a tampering with evidence conviction requires proof the defendant impaired evidence in an investigation by tampering with evidence related to the investigation.  The defendant argued that she may not be convicted of tampering with evidence when there is no investigation or potential investigation relating to the cocaine.  Instaded, she believed that the officers were investigating a possible drunk driving charge.

The Supreme Court of Ohio agreed.  The court said,

The baggie of cocaine did not relate to either an ongoing investigation of driving while under the influence of alcohol or driving without a license and had no evidentiary value to a likely investigation of public urination.


Lawsuit Challenges Speed Cameras and Red-Light Cameras in Trotwood and West Carrollton

Some of the media coverage of the new lawsuit filed yesterday by Michael K. Allen & Associates against the use of speed cameras in West Carrollton and Trotwood.  The lawsuit alleges that the use of the cameras violates the due process and other constitutional rights of motorists.

Ann Thompson at WVXU filed this radio report:

The Dayton Daily News quoted plaintiff Austin Troxell about the economics of the cities using an out-of-state vendor:

Troxell said Redflex, which he and his attorney said takes a 35 percent cut of the fines, is based in Arizona with a parent company in Australia.

“Money is leaving Ohio, it’s leaving the country. It’s not really helping the local economies as much as perhaps having a real officer on the street,” said Troxell, who says he tries to avoid West Carrollton.

Dan Sewell, writing for the AP, explains what is at stake:

The latest lawsuits say that Trotwood has been using cameras since 2006, reaping as much as $327,466 in camera citation revenues in 2012 in a city of some 24,000 residents. It states that West Carrollton started using them in 2009, and they brought in $158,038 last year in the city of some 13,000 people.

A recent series of lower-court rulings in Ohio have gone against municipalities that use cameras.

A Hamilton County judge compared Elmwood Place’s camera system to a con artist’s card game, calling it “a scam.” Judge Robert Ruehlman has ordered refunds of fines and fees totaling some $1.8 million in Elmwood Place, where thousands of motorists racked up $105 speeding fines within weeks of the cameras’ installation. The refunds are on hold pending an appellate court ruling.

Butler County Judge Michael Sage didn’t rule immediately on refunds in New Miami, after it was estimated in court that more than $1 million was collected in a little more than a year.

Fox 19 has some information about the claims:

Mike Allen’s firm says that ticketed drivers can challenge citations but cannot prove if the camera system was operating properly during the time of the ticketing.

The lawsuit says the ordinances are unenforceable because they “fail to provide adequate due process to vehicle owners as guaranteed by the Ohio Constitution.”

WHIO has some information from one of the motorists:

WLWT quotes motorists Austin Troxell:  “If an officer had given me the ticket, i would have paid without protest, but the idea of being ticketed by a machine just feels wrong.”

ABC22 reports that the “fight against red light and speed cameras is up and running.”

Michael K. Allen & Associates Files Two New Lawsuits Against Speed Cameras

Michael K. Allen & Associates today filed two new lawsuits against the unconstitutional use of traffic cameras for speed and red light enforcement.

Suits were filed against the cities of West Carrollton and Trotwood, Ohio. The cases were filed in Montgomery County Common Pleas Court.Allen Photo

The lawsuits ask the court to stop the use of the cameras immediately.  A copy of the motions for injunctions are found here:

WC File-Stamped Motion for PI-1

Trotwood File-Stamped Motion for PI


These lawsuits mark the fourth and fifth such cases handled by Michael K Allen  & Associates, following the recent March filing against Dayton, Ohio and previous cases against Elmwood Place and New Miami.

Like in the Dayton case, the lawsuits against West Carrollton and Trotwood target speed cameras and red light cameras operated by Redflex Traffic Systems, an Arizona company that shares the proceeds with the cities in which it operates.

The lawsuit alleges that the ordinances by the two cities are unconstitutional because motorists who receive citations cannot effectively challenge them by bringing in witnesses, obtaining discovery, or otherwise presenting documents to show that the camera system was not operating correctly. The lawsuit also alleged that the ordinances unconstitutionally divest a municipal court of jurisdiction.

In two previous cases judges found that similar ordinances violated the Constitution. In one case, a Hamilton County Common Pleas Court described the ordinances as”nothing more than a high tech team of three card monty.  It is a scam the motorist can’t win.”

After filing the lawsuit Michael Allen stated:

Automatic traffic enforcement systems are often more about raising revenues for cash-strapped miss of counties that improving traffic safety. We have not seen these devices can be a valuable law-enforcement tool. They are saying that if the government wants to impose fines on citizen it has an obligation to give the citizens a fair chance to defend themselves.

More information about the lawsuits can be found at the firm’s blog, www. cincicrime.com, the firm’s Facebook page, or by following the firm on Twitter.

Listen to MKA Attorney Mary Martin Discuss Annie’s Law on Multiple DUI Offenders

Michael K. Allen & Associates Attorney Mary Martin discussed the impact of Annie’s Law on everyday people with Scott Sloan on 700WLW.


Annie’s Law is a bill that would require first-time OVI offenders to use ignition Interlock systems in their vehicles in order to drive during court-appointed times. Under current Ohio law, a judge is given the discretion to make that decision.

Mary Martin | Cincinnati, OH Attorney | Michael K. Allen & Associates

The law is named after Annie Rooney, a woman who was killed in 2013 in Chillicothe, Ohio by a drunk driver.