Arrest Theorem For Ohio DUI/OVI Cases: FST ≠ PC





The officer administered the three field sobriety tests standardized by the National Highway Traffic Safety Administration (NHTSA). On the Horizontal Gaze Nystagmus (HGN) test, the officer observed two clues out of six possible clues. On the Walk and Turn (WAT) test, the officer observed three out of eight clues. On the One Leg Stand (OLS) test, the officer observed two out of four clues. The scoring of the standardized field sobriety tests gave mixed results, but the last two test results suggested Kopp likely had a breath alcohol concentration (BAC) of .08 or more.

The officer administered additional sobriety tests. On the Lack of Convergence (LOC) test, the officer observed Kopp’s right eye drifted outward rather than converging (crossing) when a pen was moved very close to the eyes. On the two remaining tests, Kopp was able to correctly recite the alphabet and count backward from 69 to 57.

Based on that evidence, the officer arrested Kopp and charged him with OVI. Kopp, through his attorney, filed a motion to suppress evidence, arguing the officer did not have probable cause to believe Kopp was operating a vehicle under the influence. The judge agreed and granted the motion. The prosecution appealed the judge’s decision to the Fifth District Court of Appeals.

The Court of appeals reviewed the totality of the circumstances. The court took into account the odors of raw marijuana and alcohol, Kopp’s admission of smoking marijuana, and the clues the officer observed during the field sobriety tests. The Court noted, however, that Kopp exhibited no impaired driving, spoke calmly/politely/intelligibly, exited his vehicle without incident, submitted to the field sobriety tests without incident and generally exhibited no visible signs of impairment. Based on the totality of the circumstances, the appellate court affirmed the trial court’s conclusion the officer did not have probable cause to believe Kopp was operating under the influence.

The Kopp decision is interesting because the court concluded the officer did not have probable cause, despite the fact the officer observed clues on the field sobriety tests. In other cases, appellate courts have given the impression that clues on field sobriety tests was “enough” for probable cause. The “enough” observation is inconsistent with the totality of the circumstances test and sounds more like an equation.

I’m glad equations are not a big part my chosen area of law. In college, I avoided math as much as possible: I earned five hours of math credit by taking a logical reasoning class. The Kopp decision is a good example of logical reasoning leading to the correct result.