ZDL wins suppression hearing in Cleveland Municipal Court, leading to dismissal of client's charge of operating a motor vehicle while under the influence of alcohol and felony charge of improper handling of firearm in a motor vehicle

Posted by Zukerman on Monday, June 3, 2013

In State of Ohio v. Abang, 2011 TRC 051756, a State Trooper initiated a traffic stop on client's vehicle after observing that client's vehicle did not have a front license plate.  The Trooper testified that he detected a strong odor of an alcoholic beverage on client's breath and that client's eyes were red and glassy.  The Trooper reqeusted client to exit his vehicle so that he could administer field sobreity tests. The Trooper testified that client exhibited all six (6) cues of impairment during horizontal gaze nystagmus test, three (3) cues of impairment during walk and turn test, and four (4) cues of impairment during one leg stand test.  The Trooper testified that during walk and turn test, client moved his feet to keep his balance while listening to the officer's instructions, did not touch heel to toe during any of his steps, and lost his balance while turning and placed his hand on the cement median barrier to catch himself from falling.  Trooper testified that during the one-leg stand, client swayed during the test to help balance himself, raised his arms more than six inches for balance, put his foot down at counts 5, 17, and 21 seconds, and was not able to complete the thirty (30) second test.

The trial court judge suppressed the results of the defendant's field sobriety test as the City did not meet its burden to show that the Trooper administered the field sobriety tests to the client in substantial compliance with the National Highway Traffic and Safety Administration's standards.  Based on the trial court's ruling, the City dismissed the OVI charge against client.  

ZDL's successful defense of the client's OVI charge was also significant because the Trooper had found a firearm in client's vehicle after his arrest during an inventory search of his vehicle.  Even though client had a valid CCW permit and the firearm was properly stored in vehicle and registered in client's name, Ohio Revised Code Section 2923.16(D)(1) makes it illegal to have a loaded handgun in a motor vehicle when the person is under the influence of alcohol, a drug of abuse, or a combination of them.  Thus, in addition to being charged with the OVI charge in the Cleveland Municipal Court, the client was also simultaneously charged with a felony charge in the Cuyahoga County Court of Common Pleas for Improper Handling of a Firearm in a Motor Vehicle, in violation of R.C. 2923.16(D)(1), a felony of the fifth degree.

Due to ZDl obtainig a dismissal of the client's OVI charge from the City of Cleveland Prosecutor's office, the Cuyahoga County Prosecutor's Office also agreed to dismiss the client's felony charge for Improper Handling of a Firearm in a Motor Vehicle as it did not appear that either the City or the County would be able to prove at a trial that the client was under the influence of alcohol at the time of his arrest as all of the field sobreity test results had been suppressed.  

 

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Billy @ fingerprintgunsafehq.com said:

I wonder what exactly the trooper did wrong in the field sobriety test. The eventual outcome is something that I don't have a problem with. It sounds like the person had a CCW permit or something similar.

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