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Law Enforcement Blog – Birchfield v. North Dakota: How it Affects OVI Prosecutions under the U.S. Constitution and Ohio Law

The collection and analysis of a person’s breath, blood, or urine is considered a “search” under the Fourth Amendment, meaning that this collection and analysis is only constitutional if a warrant is first obtained, or if any of the well-established exceptions to the search warrant requirement exist. In the blood-alcohol test realm, the two most frequently discussed exceptions are the exigency (urgency) exception, and the search incident to arrest.

In 2013, the Supreme Court decided Missouri v. McNeely, in which it held that the natural dissipation of alcohol in a person’s blood could sometimes create an exigent circumstance, but that the fact that alcohol dissipates does not create a per se exigency allowing for a warrantless blood test of an OVI suspect. A determination of whether an exigency exists and whether a warrant is required prior to collecting a blood sample is to be decided on a case-by-case basis. However, McNeely did leave open the question as to whether the warrantless collection of a blood sample is permitted under the search incident to arrest exception.

In the recently decided case of Birchfield v. North Dakota, the U.S. Supreme Court determined that blood tests are a significant intrusion on an individual’s privacy and that the individual’s privacy interests outweigh the state’s need to obtain evidence in driving under the influence of alcohol prosecutions.  As a result, the search incident to arrest exception cannot be used to search an OVI suspect’s blood without a warrant.  Breath tests, on the other hand, are far less intrusive than blood tests, and do not allow the government to collect information about the suspect that may be irrelevant to the OVI prosecution. As a result, law enforcement may continue to search suspects’ breath without first obtaining a warrant.

In cases in which a breath test is not feasible and law enforcement wishes to have the blood of a suspect tested for alcohol content, an officer must first obtain a warrant, or may rely on the exigency exception if a true exigency exists – for example, a warrant will be impossible to obtain within a reasonable amount of time.

The most notable impact of Birchfield upon Ohio law is that criminal penalties may no longer be imposed for the refusal of a blood test. In Ohio, an OVI with a refusal is technically a different offense than a regular OVI, which carries greater penalties. In the wake of Birchfield, a suspect cannot be subject to the “OVI with refusal” offense if he or she refuses a blood test. However, suspects may still be charged with the heightened offense if they refuse a breath test. Furthermore, Administrative License Suspensions are considered civil penalties, and may be imposed for the refusal of any type of test. Finally, the refusal of any type of test, including a blood test, may still be used as evidence against a suspect at trial.

In the wake of Birchfield, law enforcement officers should offer breath tests instead of blood tests when investigating a person for OVI when available. Furthermore, officers should seek warrants to obtain blood samples from suspects when breath testing methods are unavailable, and should only rely on the exigency exception when a warrant cannot possibly be obtained.

It is notable that Birchfield does not discuss urine tests, and law enforcement should err on the side of caution when seeking urine tests. Breath testing methods should still be favored over urine tests, and because urine tests could be easily analogized to blood tests by courts, warrants should be obtained prior to seeking urine tests, if possible.

Finally, Birchfield does not discuss blood tests in the driving under influence of drugs context. Part of the reason a breath test can be obtained without a warrant while a blood test cannot in the driving under the influence of alcohol context is because a breath test can adequately serve law enforcement interests when detecting alcohol. However, the same is not true with detecting drugs. As the permissibility of obtaining blood samples without first securing a warrant in the driving under the influence of drugs context is not clear, officers should continue to err on the side of caution and obtain search warrants prior to obtaining blood tests when possible.


OVI Convictions Up in Smoke – How Litigating Driving Under the Influence of Drugs Cases Differs from Litigating Driving Under the Influence of Alcohol Cases

Most people are familiar with the National Highway Traffic Safety Administration (NHTSA)’s “Drive Sober or Get Pulled Over” campaign. Throughout the years, a lot of advertisement money from various organizations has been used to educate and persuade people about the dangers of “drinking and driving.” However, little attention has been paid to the ever-increasing incidents of drivers taking to the road while under the influence of a drug.

While driving under the influence of alcohol and driving under the influence of a drug or drugs are both criminalized under Ohio Revised Code section 4511.19 and while the elements of the respective crimes are the same, investigation and prosecution of a driving under the influence of alcohol case can be vastly different from investigation and prosecution of a driving under the influence of a drug or drugs case.

When an officer suspects a driver of being under the influence of alcohol, he or she can look for very specific clues, the most telling of which are an odor of alcoholic beverage on or around the driver’s person, or an admission by the driver that he or she consumed alcohol recently. Most officers, and lay people who may end up on a jury, are familiar with the scent of alcoholic beverage, can likely associate certain behaviors with intoxication by alcohol, and are aware of the general time frame in which alcohol has an effect after consumption.

But what happens when an officer pulls over a driver, and the driver acts very strangely, or even erratically, but there is no sign that alcohol is consumed, there are no drugs in sight, and the driver does not admit to having consumed any particular substance? If a blood or urine test is obtained, this will frequently answer the question of what substance has been used, and in what quantity. However, what happens when the driver refuses a test, a test is unavailable, or results are lost in the mail?

Many of Ohio’s appellate courts have held that speculation as to which drug a driver may be under the influence of is not sufficient to convict a driver of OVI. The prosecution must present evidence sufficient to establish a nexus between the driver’s impaired condition and any type of drug of abuse. While circumstantial evidence may be used to convict a driver, such evidence must point to the use of a particular drug of abuse (for example, empty prescription bottles that have been filled very recently, or the odor of burnt marijuana). Appellate courts have also held that the prosecution must present some evidence of how that particular drug affected the defendant (in the form of expert testimony or testimony from someone familiar with the driver and how he or she acts while using the drug), and essentially how this effect caused the impairment.

Furthermore, most officers use the Horizontal Gaze Nystagmus (HGN) test, outlined in the NHTSA manual, to determine whether a driver may be intoxicated. According to the NHTSA manual, when performed correctly, the HGN can help an officer determine, with 88% accuracy, whether a suspect has a blood alcohol content of .08 or higher, or may suggest that the subject is under the influence of a CNS depressant (like bartbituates or sleep medications), an inhalant, or a dissociative drug, like PCP. However, the HGN cannot determine whether the driver is under the influence of many other drugs, including marijuana. Some Ohio courts have refused to admit the results of an HGN test into evidence in cases in which the defendant has been suspected of driving under the influence of marijuana.

With the increase of people driving under the influence of drugs and the push to legalize marijuana, the issue of driving under the influence of a drug or drugs of abuse will not go away. We will likely see an increase in court decisions regarding the topic.

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