ZDL wins suppression hearing in Cleveland OVI case, client's breath test result and field sobriety tests suppressed, OVI charges dismissed by prosecutor

Posted by Zukerman on Monday, June 3, 2013

In City of Cleveland v. Guider, 2012 TRC 044131, ZDL represented an individual who was charged with two counts of operating a motor vehicle while under the influence of alcohol "OVI" in violation of City of Cleveland Ordinances 433.01A1 (basic OVI charge) and 433.01A4 (OVI charge relating to a breath test of .08 or higher).  Client was arrested on his way home from a concert after a police officer who was directing traffic allegedly observed client committ a marked lane violation and an illegal change of course violation.  The officer testified that he detected a moderate odor of alcohol on client's breath and ordered the client out of his vehicle so that he could administer field sobriety tests.  The officer administered the one-leg stand, walk and turn, horizontal gaze nystagmus, and alphabet test to client.  The officer alleged that the client failed all four field sobriety tests.  The officer testified that the client swayed and raised him arms more than six (6) inches during the one-leg stand test, missed steps and raised his arms more than six inches during the walk and turn test, mubled and lost his balance during the alphabet test, and exhibited multiple cues of impairment during the horizontal gaze nystagmus test.

The trial court judge suppressed all of the results of the client's field sobriety tests as the arresting officer, who had been a police officer for more than fifteen years, did not administer the tests in substantial compliance with the National Highway Traffic and Safety Administration's standards.  The trial court judge also suppressed the results of the client's breath test, a .105 reading, as the City failed to present evidence during the hearing that it maintained records of the calibration checks on its breath test machine for a period of three (3) years as required by the Ohio Administrative Code.  The trial court also found that the City failed to present evidence that it substantially complied with the Ohio Administrative Code's requirement that all breath testing machines undergo an instrument check at least once every 192 hours.  ZDL inspected the calibration records of the City of Cleveland's breath test machine and found that 201 hours passed between the instrument checks prior to the Accused's breath test.  That error on the part of the police department coupled with the fact that the City did not provide any evidence of any subsequent instrument check after the client's breath test to prove that the breath test machine was in proper working order at the time of the client's test, resulted in the trial court suppressing the client's breath test result.

As the trial court suppressed all of the results of the client's field sobriety tests and his breath test, the City conceded that it would not be able to prove at a trial that ZDL's client was operating a motor vehicle while under the infleunce of alcohol.  Accordingly, the City dismissed both of the OVI charges against ZDL's client.

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