Helping Private Creditors: The Ohio Supreme Court Defines Final Discharge for Sealing of the Record

Back in September 2014, Ohio Congress redefined what an Eligible Offender means as it relates to Sealing of the Record statute under 2953.31.  This was a big deal in the criminal defense world because it allowed for a more lenient interpretation of Eligible Offender.   The basic rule is that an Eligible Offender can have at most two misdemeanor convictions, or one misdemeanor and one felony conviction.

Under prior law, a defendant could have up to two separate misdemeanor convictions sealed as long as they were not for the same offense.  For example, if the defendant had a possession of marijuana conviction and a separate theft conviction, he was eligible to seal both cases so long as he met all the other criteria. But, if that same defendant had two separate theft convictions, he was ineligible to have them sealed.  That is no longer the case under the new definition of Eligible Offender.

Great! This helped out a lot of folks that paid their debt to society and are trying to move forward in life without a criminal conviction attached to their name.  Speaking of debts, how would court-ordered restitution work with regards to getting a criminal record expunged?  For example, could I get my criminal record expunged if the court-ordered restitution is not paid?  The Ohio Supreme Court solved that dilemma in State v. Aguirre, 2014-Ohio-4603.

In Aguirre, Ms. Aguirre plead guilty to one count theft, a fourth-degree felony, for stealing money from her employer to pay her gambling debts.  During her sentencing hearing on July 9, 2002, the court sentenced Ms. Aguirre to five years of community control (probation) and ordered her to pay restitution in the amount of $32,562.47 between her employer’s two insurance companies.

On January 12, 2012, Aguirre applied to have the record of her theft conviction sealed after she successfully completed her community control.  The state objected to the sealing of her record because Aguirre had not paid her restitution in full.  Over the state’s objection, the court granted Aguirre’s sealing of the record because “the restitution was ordered to an insurance company and Aguirre paid a substantial portion of the total.”  Not happy about this, the state appealed the Aguirre’s approved application for sealing her record.  The 10th District of Ohio upheld the trial court’s decision.  This led one last final appeal to the Ohio Supreme Court.

At this point I think it is beneficial to look at R.C. 2953.32 (A)(1) real quick:

An eligible offender may apply to the sentencing court if convicted in this state…for the sealing of the record of the case that pertains to the conviction.  Application may be made at the expiration of three years after the offender’s final discharge if convicted of a felony, or at the expiration of one year after the offender’s final discharge if convicted of a misdemeanor. (Emphasis added).

Based on the above statute, Ms. Aguirre would have been eligible for the sealing of her record three years after her final discharge of the case.  One problem though….what does final discharge mean?  Looking to R.C. 2953.31 for definitions, the legislature failed to define “final discharge” when it came to sealing criminal records.  This leads us back to the case of State v. Aguirre.

When reading the opening analysis of this case, one can tell real fast that the Court was not going to be in favor of Ms. Aguirre.  The Court opens up their analysis with “our analysis is driven by what we have held previously, the sealing of a criminal record is a privilege, not a right.”  And that is followed up with, “suppression of a criminal record at the request of the offender is an act of grace created by the state.”  Wow!  That is some pretty strong opening language in my mind at least.

After the Court expressed their feelings towards an individual sealing the record, the opinion takes some different routes to get to their holding.  The Court first discusses statutory construction of R.C. 2953.32, then moves on to explaining why restitution as a punishment is a continued benefit of public record, after this the Court goes back to statutory construction R.C. 2953.32 with regards to judicial discretion, and then finally restates their holding once again.   Given this could be a little confusing, I figure the best way to break the opinion down will be to combine the sections of the opinion regarding statutory construction of R.C. 2953.32 and then talk about continued restitution as a benefit of public record.

The Court stated that the “first considerations in determining eligibility are whether the offender has obtained a final discharge and whether three years have elapsed since that event.”  Basically, an offender is not permitted to file an application for sealing of a felony record unless they satisfied the two requirements of 1) final discharge, and 2) three years elapsing from the final discharge.  Looking at Ms. Aguirre’s case, the trial court discharged her from her community control sanctions.  With that discharge, the trial court discharged the remaining restitution owed to the insurance companies.  In essence, that would become the final discharge date.

The Court had a problem with this logic.  First, the Court found that when restitution is owed, discharge from community control does not effect a final discharge for purposes of R.C. 2953.32.  Second, the Court interpreted R.C. 2953.32 as giving the trial court no discretionary consideration before the offender has established eligibility to apply for sealing of the record; and because of that, the trial court is required to refuse to seal the record.  Remember, eligibility is defined as having final discharge and three years elapsing from the final discharge, for felony conviction.

I now want to focus on discharge date of community control versus final discharge date regarding restitution.  It is by discussing the difference between these two dates that the Court defines final discharge date for purposes of restitution and why that is a benefit of public record.

In deciding to uphold Ms. Aguirre’s sealing of her record, the Tenth District found that by refusing to seal a record of conviction is a continued punishment with no benefit to a victim or private payer who is owed restitution.  The Ohio Supreme Court’s response to the Tenth District’s above reasoning was a simple, “Not so.”  The Court recognized that the primary goal of restitution is remedial or compensatory; however, they felt restitution also has a punitive purpose.  According to the Court, court-ordered restitution is an obligation that is “rooted in the traditional responsibility of a state to protect its citizens by enforcing its criminal statutes and to rehabilitate an offender by imposing a criminal sanction intended for that purpose.”  The Court went on to say, “a court is not imposing continued punishment by denying a premature application to seal an offender’s record before the completion of restitution.  Rather, the court is ensuring that both the punitive and remedial aspects of the restitution order are satisfied before the offender’s sentence is sealed, in accordance with the statutory scheme.”

The statutory scheme the Court is referring to is R.C. 2929.15 and R.C. 2929.18.  Under R.C. 2929.15, the duration of community control is limited to five years.  While under R.C. 2929.18, there is no limit on the duration of the restitution obligation.  Going back to Ms. Aguirre’s case, the Court is saying that while her community control must come to an end at five years, Ms. Aguirre’s continued punishment for restitution must continue since there is no limitation on the amount of time a trial court can hold over her head until the restitution is paid.

Are you kidding me?!?  Shouldn’t that be the trial court’s discretion as to when the restitution is paid?  This is where the second part of the opinion comes into play.  The Court found through statutory construction, that the trial court cannot use discretion before an offender is eligible to seal their record.  Which, for a felony conviction is three years after final discharge, and final discharge does not occur until restitution is paid!

With all that in mind, the Court held that an offender who has satisfied five years of community-control obligations is not eligible to apply for sealing until the restitution obligations have been satisfied; no matter how long that takes.  Or in plain English, final discharge does not occur until restitution is paid in full and once that occurs, then the three-year waiting period commences.

In his dissenting opinion, Justice O’Neill brought up two very solid problems with the majority’s holding.  First, Justice O’Neill sees no reason why there needs to be a distinction between community-control sanctions and a restitution order.  In his understanding of the two statutes, the community-control statute allows for restitution as a sanction.  Because of this, the trial court would have the authority to modify the sentence of restitution it has imposed.  Second, as a broader policy matter, he felt the criminal-justice system should stay out of the collections business.  I agree with both issues raised by Justice O’Neill.

In reality, there is no benefit to continuing the punishment of an individual regarding restitution.  In most cases where the court orders restitution as part of the offender’s sentence, the victim or other parties involved will no doubt file a civil lawsuit against the offender.  That is where the restitution issue should be resolved…in civil court.  Victims can utilize various other options in order to secure payment of restitution.

Let’s take Ms. Aguirre’s case, but put a twist on it.  The two insurance companies involved decide to sue Ms. Aguirre for the amount stolen from her employer (the Court’s opinion does not address whether or not there was a civil action against Ms. Aguirre).  Ms. Aguirre pays the smaller amount off in full, but she negotiates a repayment plan with the insurance company for the larger amount owed.  The payment plan requires Ms. Aguirre to pay $250 per month over the course of several years.  Ms. Aguirre makes her payments timely each month.  After being discharged from her community control, Ms. Aguirre waits three years and files an application to seal her theft record.  At this point, Ms. Aguirre has paid one insurance company off and has paid the second insurance company $24,000 ($250 per month over eight years).  However, Ms. Aguirre still owes $8,000 in restitution.  Based on the Court’s holding, the judge will have no choice but to deny Ms. Aguirre’s application!!  Even though, Ms. Aguirre and the insurance company settled the claim/restitution amount in civil court.  I see no benefit to this whatsoever!

This a tough decision for anyone who is trying to get their life back on track after successfully completing five years of community-control but still has restitution balance.  Hopefully, the General Assembly will define “final discharge” in a way that is beneficial to individuals trying to seal their criminal record.

The Odd Couple Dilemma: Consent to Police Searches with Joint Occupants

“I can’t take it anymore, Felix, I’m cracking up. Everything you do irritates me. And when you’re not here, the things I know you’re gonna do when you come in irritate me. You leave me little notes on my pillow. Told you 158 times I can’t stand little notes on my pillow. ‘We’re all out of cornflakes. F.U.’ Took me three hours to figure out F.U. was Felix Ungar!” – Walter Matthau as Oscar Madison in The Odd Couple.

Anyone who has ever lived with a roommate has felt Oscar’s pain.  Whether it was in a shared apartment or house, roommates can drive you nuts!  And the complaints are usually the same.  “You didn’t clean the bathroom and it is your turn!” or “Will you please cleanup after yourself in the kitchen!”  Obviously, these are just a few minor complaints, but they can drive roommates crazy.  So if these minor complaints can drive roommates crazy, what would happen to these roommates if the police showed up wanting to search the apartment?

Here is the scenario, like the Odd Couple, you and your roommate do not see eye-to-eye on certain things.  It leads to arguments, but on the whole your roommate pays the rent and bills on time, so not too bad.  Then one night while you are both watching TV, you hear a loud knock on the door followed by a voice yelling, “Police…Open UP!”  Not a normal thing to hear, you open your door two find to police officers standing at your door.  They inform you that they have reason to believe drug activity has been going on inside your apartment.  The police officers then ask your consent to search your apartment.  Obviously scared because of the false accusation and wanting to show your innocence, you give the police officers consent to search the apartment.  But prior to the police officers stepping inside your apartment, your roommate jumps up off the couch and tells the police officers to stay outside, and they are not welcome to come into the apartment.  Now remember this scenario, because I will be reverting back to it.

So who prevails?  Prior to 2006, only one roommate had to give police officers consent to search the shared apartment or house.  Say What?!?!  Does not seem right to me!  Well, in 2006 the U.S. Supreme Court made a narrow exception to the above rule in Georgia v. Randolph.  The Court in Randolph held that “a physically present inhabitant’s express refusal of consent to a police search of his home is dispositive as to him, regardless of the consent of a fellow occupant.”  To paraphrase, the consent of one occupant is insufficient when another occupant is present and objects to the search.  Awesome!!  Our Fourth Amendment Rights to unlawful search and seizure are upheld once again!  But, as everything in life….some things must come to an end.

Let’s change up the fact pattern real quick.  After you give consent to the search of your apartment and your roommate objects, the police officers look at your roommate and ask for his name.  Your roommate obliges to the request and gives the police officers his name.  In turn, the police officers run a name check on your roommate and find out that he has a warrant for his arrest for failure to appear on a traffic ticket.  Police officers arrest your roommate on the spot, and haul him to the police station.  An hour later a detective shows up at your door with a written consent form to search your apartment.  Still scared, you sign the form and allow the detective to search your apartment.  Through this search, the detective finds a couple of marijuana joints in your roommate’s room.  BUSTED!  Believing his rights were violated, your roommate hires an attorney to fight the charges.  The attorney argues that under Randolph, this was an invalid search and seizure!  Makes sense right?  After all, he objected to the search from the very beginning.  The U.S. Supreme Court saw differently in Fernandez v. California.

In Fernandez, the police officers arrived at Fernandez’s apartment after a violent gang-related robbery and heard screaming coming from inside his apartment.  Police officers knocked on the door and Fernandez’s girlfriend answered the door holding a crying infant child and had a beat up nose.  Fernandez then showed himself telling the police officers that he knows his rights and objects to any search.  Seeing the beat-up girlfriend, the police officers arrested him for domestic violence and the earlier robbery.  While Fernandez was at the police station, police officers returned an hour later to the apartment and were given consent to search the apartment by the girlfriend.  This led to finding incriminating evidence against Fernandez.  The U.S. Supreme Court upheld the search because Fernandez was no longer “physically present” and his removal from the apartment was “objectively reasonable.”  Basically, if the objector of the search is removed by the police and that removal is made for objectively reasonable reasons, then a consenting co-occupant provides sufficient authority to allow search of the premises.

When reading this case, I kept thinking to myself that the only thing a police officer will need to do when trying to get consent to search a house or apartment with joint occupants, is just find a reason to remove the objecting party and get consent from the non-objecting party.  Seeing this fear, the Court in Randolph stated that consent by one occupant might not be sufficient if “there is evidence that police removed the potentially objecting tenant from the entrance for the sake of avoiding a possible objection.”  It sounds like the Court was saying that police officers cannot use their own motive to remove an objector to get consent to search from the non-objector.  The Court in Fernandez, however, recognized this argument and shot it down by saying removal of an objector is okay if that removal is objectively reasonable.  The Court stated that it is not an inquiry into the subjective intent of officers who detain or arrest a potential objector but instead to refer to situations in which the removal of the potential objector is not objectively reasonable.

Hmmmmmmmmmm…….I can see how this one is going to play out.  All Barney Fife needs is just one excuse, sorry one objective excuse, to remove the objector from the premises in question.  Are you kidding me?!?!?!  Police will do anything and everything to get away with warrantless searches!  Glad to hear they have more ammo to accomplish that goal now.  But hey, these are not subjective motives to remove an objector from the premises, they are reasonable under an objective standard.  Police never have improper motives, right?!?!  Hold on to that thought, this gets better.

Just like in the first example above and in Fernandez, both individuals were removed from the premises after making their objections to the search.  Also in both cases, the police show back up to the premises one hour later to ask the other occupant (again) for consent to search the premises.   So what happened with that objection to search an hour ago?  According to the Court, that objection does not matter because that individual was not present to reinforce that previously made objection.  The Court stated this poses a plethora of practical problems.  The Court asked, must a co-tenant’s objection, once registered, be respected indefinitely?  Meaning, could Fernandez stop police in their tracks eternally by withholding consent?  And there are many more examples the Court addresses as to why the ongoing objection is burdensome to the police officers.

Ummmmmm how about the police just get a search warrant?  Not good enough for the Court in Fernandez.  And I quote, “even with modern technological advances, the warrant procedure imposes burdens on the officers who wish to search, the magistrate who must review the warrant application, and the party willing to give consent.”  Well I am glad to know that my rights to unlawful search and seizure are burdensome to police officers and magistrates. This did not sit well with Justice Ginsburg, and she took the lead on this issue in her dissenting opinion.

Justice Ginsburg stated very simply, “the police could readily have obtained a warrant to search the shared residence.”  Justice Ginsburg goes on to state, “the Court does not dispute this, but instead disparages the warrant requirement as inconvenient, burdensome, entailing delay even with modern technological advances.”  Most likely dumbfounded by this, Justice Ginsburg looked to Missouri v. McNeely which found that technology allows for more expeditious processing of warrant applications, and cited state statutes that permitted warrants to be obtained remotely through various means such as telephonic or radio communication, electronic communication, and video conferencing.  Because of these developments, Justice Ginsburg felt that the “dilution of the warrant requirement should be vigilantly resisted.”

Towards the end of her dissent, Justice Ginsburg asks if the police have probable cause and could obtain a warrant with dispatch, but can gain the consent of someone other than the suspect, why should the law insist on the formality of a warrant?  In my opinion her response to her own question is dead on point.  Justice Ginsburg answers her question with “Because the Framers saw the neutral magistrate as an essential part of the criminal process shielding all of us, good or bad, saint or sinner, from unchecked police activity.”  Justice Ginsburg ends her argument by stating that the investigation of crime would always be simplified if warrants were unnecessary, but the Fourth Amendment reflects the view of those who wrote the Bill of Rights that the privacy of a person’s home and property may not be totally sacrificed in the name of maximum simplicity in the enforcement of the criminal law.  Very well put!

Wow…that was a lot to handle and digest!  So let’s talk about what probably really happened in the Fernandez case.  We have a victim that was brutally beaten in a gang- related robbery.  The victim tells the responding police officers that the attacker went into an apartment building complex.  Police officers follow that lead and hear screaming coming from one of the apartments.  The officers knock on the door and then see Fernandez’s girlfriend with a beat up nose when she opens the door.  Knowing that they could not go past a plain view search, the officers figured they needed a warrant to search for any criminal tools or weapons used in the robbery.  In the meantime, the officers decide to get Fernandez out of the apartment by placing him under arrest for domestic violence.

Once down at the police station, officers and/or detectives start to question him about the robbery.  Being a tough gang member, I would imagine Fernandez was not willing to talk.  Some officer or detective most likely realized that they will need a warrant to search the place.  Maybe getting a warrant that night would be difficult because of delays, or maybe they did not have enough probable cause, or maybe a very smart detective or officer figured out that with Fernandez out of the apartment they could just ask for consent once more from Fernandez’s girlfriend.

In Fernandez’s motion to suppress hearing, Fernandez’s girlfriend testified that when the police returned an hour later to the apartment, they began to question the girlfriend’s four-year-old son without her permission.  She asked to remain present during that questioning.  In response to this, the officers told her that their investigation was going to determine whether or not they take her kids from her right now.  The girlfriend testified that she felt pressured into giving consent and did not want to sign the consent form, but did so because she just wanted it to end.

So why would the police go through all of this trouble in getting consent to search the apartment?  I personally believe that from the beginning the officers did not have enough for a search warrant.  They couldn’t break Fernandez into admitting anything related to the robbery, and they spent a fair amount of time pressuring for consent to search from Fernandez’s girlfriend.  It seems their only option was a consensual search at the time.  Or maybe they could have obtained a search warrant, but they are so burdensome!!  I hate when my rights under the Fourth Amendment get in the way of police officers!


DUI Checkpoints – One Florida Attorney’s Controversial Advice to Motorists

In my last Blog Post entitled “DUI Checkpoints – How are they Legal?” I explained Ohio DUI Checkpoint Law and discussed the various elements associated with it.  More importantly, I hit on why I believe DUI Checkpoints are intrusive and clearly violate a motorist’s Fourth Amendment right to be free from unlawful search and seizures.   As you can imagine, this is a hot button topic throughout the country.  So much so, one Florida defense attorney offered what some call controversial advice to avoid problems at a police sobriety checkpoint.

Attorney Redlich states on his blog that motorists should put their license, registration, proof of insurance, and a flyer that states “I remain silent,” “No Searches” and “I want my Lawyer” in a plastic baggie attached to the exterior of their vehicle.  And then prior to approaching the checkpoint, the motorist should roll up their window and not talk to the Officer(s).  Below is a video of this advice in practice.

This video was reportedly filmed at a DUI Checkpoint in Levy County, Florida.  Just for disclaimer purpose, I do not know if this is a real DUI Checkpoint or if it was just an attorney hiring a bunch of actors to prove his point on how to handle a DUI Checkpoint.  But for sake of argument, I am going to assume this was a real life DUI Checkpoint with Levy County Sheriff’s Office.

In the video you can see that the driver placed his valid license, current insurance card, and vehicle registration card within a clear plastic bag.  Along with his personal identification material, the driver has a flyer instructing the officer’s he does not want to talk with them and if they want to talk him to call his lawyer.  In describing what he is doing, the driver also explains that the reason why he wants his window up the entire time is because he believes that no matter what the cops can say that he had an odor of alcohol on his breath and his speech was slurred.  So in theory, by having the window up, the driver avoids two clues the police can use to find reasonable suspicion of alcohol consumption.  In this video, the police officers read the information contained in the plastic bag and send the driver through.

Awesome!!  This is a great victory for a private citizen standing their ground against the unlawful search and seizure of their person.  Now before anyone goes around trying out the Plastic Bag Technique when driving through a DUI Checkpoint, check out this video of two men going through a DUI Checkpoint in Escondido County, California.  They had a very different experience.

In this video (which I am positive was shot before the Plastic Bag Technique described above) shows two gentlemen driving through a DUI Checkpoint.  The driver’s window was not rolled all the way down, but rather just a couple inches.  The officer was obviously not happy with the window only being rolled a couple inches down.  Showing his displeasure, he instructs the driver to roll the window completely down.  A conversation between the police officer and driver ensues.  Then after only a few short minutes the police officers break the driver’s window and place him under arrest for most likely some form of obstructing official business.

Two videos of drivers trying to maintain their Constitutional Rights under the Fourth Amendment from unlawful search and seizures with two very different results!!

Let’s break down these two videos to find the differences which could have led to the different results.

  • The first thing I noticed was that these two DUI Checkpoints were different in nature. The Levy County DUI Checkpoint seemed to be just that, a DUI Checkpoint. But, the Escondido DUI Checkpoint was also a License Checkpoint, meaning that in addition to just checking for drunk driving the officers could inquire as to the license status of the driver. So, even though the Escondido County Driver did not want to give the officer his license, technically he was supposed to hand it over to the officer. Side Note: The Ohio Supreme Court upheld the Dayton Police Department’s License Checkpoint in State v. Orr, 2001-Ohio-50.
  • The Escondido Driver had his window cracked only a couple of inches whereas the Levy County Driver had his window completely up.
  • The Escondido Driver, throughout the entire police interaction, repeatedly asked if he was free to leave or if he was being detained. The Levy County Driver never let the police take over the conversation. In fact, the Levy County Driver did not have to say a word because all of the information the police would require was placed in a plastic bag with instructions of what the driver was willing to discuss.
  • Prior to entering the checkpoint, the Levy County Driver placed his plastic bag with his information and instructions to the police on the outside of his car BEFORE entering the DUI Checkpoint. The Escondido County Driver entered the Checkpoint and then rolled down his window a couple of inches. I believe that when the Officers in Escondido saw the window going down only a couple of inches, they became immediately irritated. And I further believe this could have happened to the Levy County Driver had he rolled down his window at the Checkpoint, placed his plastic bag on the outside of his car, then rolled his window back up.

Even when breaking down the videos, I think it is very apparent that the results could have been completely different.  For example, the officers could have just sent the Escondido County Driver on his merry way.  In contrast, the officers could have taken the Levy County Driver’s information out of the plastic bag, ran it through their police computer system, and demanded he stepped out of his vehicle.   And if the Levy County Driver still refused to exit his vehicle, well I think he would have been in the same position as the Escondido driver.  What it really comes down to is the police officers manning the DUI-Checkpoints.  There are good cops and there are bad cops.

After the Levy County DUI Checkpoint video went viral, various Florida County Sheriff Departments announced their plans to combat people placing their driver’s information in a plastic bag outside of their window.  One Sheriff Department threatened to arrest any motorist for obstruction who utilized this technique.  Another Sheriff Department was informed by legal counsel that an officer can order a person to roll down their window and step out of their vehicle, if that officer witnesses erratic driving, drugs in plain view, or other problematic conduct.  Hmmmmmm…..other problematic conduct??  Do you suppose this legal counsel defines other problematic conduct as placing one’s driver’s information in a plastic bag and placing that bag on the outside of the driver’s side window?

So this begs the question…..what should one do during a sobriety checkpoint?  In answering this question, I think the most important thing to remember is that you have rights throughout this DUI Checkpoint process.

  1. You have the right to remain silent and to not answer any of the officer’s questions without your attorney present. Do not admit to drinking, do not admit to drug use, do not admit you have a suspended license, do not admit to not having insurance. Just remain silent and instruct the officer that you wish to have an attorney present during any and all questioning.
  2. You have the right to not perform any field sobriety tests. If asked to perform field sobriety tests, politely decline and ask to speak with your attorney immediately. Remember, these tests are designed for you to fail. No one can pass them.
  3. You have the right to deny search of your person and your vehicle. Simply ask that the vehicle be locked and left at the scene. Without your consent, police officers need probable cause and warrant. Make them work for it! And if they start to search your vehicle without your consent, remain calm!! Just better defenses for your case!

And in case you were wondering, there is no Ohio Law stating that a driver must completely roll down his window when talking to an officer either at a DUI Checkpoint or during a routine traffic stop.  However, don’t be surprised if the stopping officer demands that you must roll down your window.  At this point, the choice is yours….either comply or stick to your guns!  And if you choose the latter, hopefully you will not have a broken window!

In closing, as much as I truly like Attorney Redlich’s approach to handling a DUI Checkpoint, I would highly advise against trying the Plastic Bag approach in Ohio.  You will bring unwanted attention to yourself!  Remember your constitutional rights and immediately contact your attorney!

In my next Blog Post I will be discussing the U.S. Supreme Court’s decision of upholding Police Manufacture Consent with regards to Co-Inhabitants of an apartment.

DUI Checkpoints – How are They Legal?

A Breakdown And Basic Understanding Of DUI-Checkpoints

Driving down the highway and seeing an Ohio State Trooper standing on the side of the road with his laser gun pointed directly at me always makes my heart stop. I start to think, “Crap, was I speeding?” Because the last thing anyone needs is to be stopped by a police officer. It is a nerve-racking event that not too many people enjoy. The officer or trooper approaches your vehicle and starts to ask for your license, insurance, registration, etc. Then you sit there and wait while the officer or trooper runs your personal information. Assuming you have no warrants and your license is valid, you get a ticket or a warning.

Overall, not a pleasant experience by any account. But let’s break this down.

  1. A trooper pointed a speed detecting device at your car (laser gun);
  2. Registered your speed to be in excess of the posted speed limit;
  3. Pulled up behind your vehicle;
  4. Activated his overhead lights (informing you that he is conducting a stop);
  5. Stops you;
  6. Investigates not only the speed infraction but anything else he can find;
  7. Then assuming everything with you is good to go, you receive a speeding ticket or a warning.

So, this whole stop was based on the trooper’s Reasonable Suspicion that you were speeding. And that was his sole justification for pulling you over. Okay….that is a typical scenario in the court. But what if there is no Reasonable Suspicion? And that leads us into DUI-Checkpoints.

During a DUI-Checkpoint, a motorist enters into the checkpoint and is given instructions to stop. Once stopped and just like any other traffic stop, the officer asks for the motorist’s license, automobile insurance, and registration. It is during this time, the officer can order the motorist out of the vehicle if he smells alcohol on the motorist’s breath or believes the motorist is impaired from drug use. Well isn’t that a problem? How is the officer not violating the motorist’s Fourth Amendment right to unlawful searches and seizures? After-all, the motorist has not committed any traffic infractions! He is just driving down the road and then being stopped for no particular reason…RIGHT?!?!

Unfortunately, the U.S. Supreme Court in Brown v. Texas did not feel the same way. The Court found a three-part balancing test to determine the reasonableness of stops and seizures under the Fourth Amendment relating to sobriety checkpoints. The Court stated, “Consideration of the constitutionality of such seizures involves:

  1. A weighing of the gravity of the public concerns served by the seizure,
  2. The degree to which the seizure advances the public interest, and
  3. The severity of the interference with individual liberty.”

This is a pretty general balancing test without much guidance. The Ohio 2nd Appellate District felt the same way and adopted a test developed by the Iowa Supreme Court in State v. Hilleshiem. The Ohio 2nd District in State v. Goines found that a vehicle may be stopped where there are all of the following:

  1. A checkpoint or roadblock location selected for its safety and visibility to oncoming motorists;
  2. Adequate advance warning signs, illuminated at night, and timely informing approaching motorists of the nature of the impending intrusion;
  3. Uniformed officers and official vehicles in sufficient quantity and visibility to show the police power of the community; and
  4. A predetermination by policy-making administrative officers of the roadblock location, time, and procedures to be employed, pursuant to carefully formulated standards and neutral criteria.

Reading the 2nd District’s test, it seems to me that this test goes to the third prong of the U.S. Supreme Court’s balancing test above. This makes sense, because the severity of the interference with individual liberty is what is truly at stake. Don’t worry though, the U.S. Supreme Court addressed this very issue in a separate case.

Eleven years after developing the three-prong balancing test in Brown v. Texas, the U.S. Supreme Court was at it again with sobriety checkpoints. In Michigan Dept. of State Police v. Sitz, the Court found that individual liberty or privacy can be broken down into objective and subjective intrusions. An objective intrusion is based on “the duration of the seizure and the intensity of the investigation.” A subjective intrusion is based on “the fear and surprise engendered in law-abiding motorists by the nature of the stop.”

Based on those two definitions of objective and subjective intrusion, the U.S. Supreme Court held that a state’s use of sobriety checkpoints does not violate the Fourth Amendment, and that the objective and subjective intrusion of privacy is minimal. The Court went on to say that the fear and surprise of motorists – subjective intrusion – are further lessened because “at traffic checkpoints the motorists can see that other vehicles are being stopped and can see visible signs of the officers’ authority.”

Now, the other two factors to be weighed in the balance test also need to come into play, but I do not believe they are difficult for the state to show. So, there is the gravity of the public concerns served by the seizure and the degree to which the seizure advances the public interest. Okay, I can sum those two up real quick. A State Trooper Captain gets on the News and states, “We are cracking down on impaired driving on Wilmington Avenue from the corners of Patterson to Dorothy Lane. We have statistics that show on this stretch of Wilmington Avenue there has been more OVI arrests in the past two months than any other stretch of roadway. In addition, we have had four accidents involving impaired drivers, one was with a fatality. In order to reduce impaired driving, the Ohio State Patrol along with the Kettering Police Department will be conducting a sobriety checkpoint from 8 p.m. to 11 p.m.” BOOM! The public concern is impaired drivers lead to car accidents and the public interest is to stop and get impaired drivers off of the road through the use of sobriety checkpoints. That is good enough for most courts.

Going back to my example of breaking down a stop for speeding, I think it is clear that any stop is intrusive in nature. And that is just with one to two police officers on scene! Sobriety checkpoints have multiple police officers looking into your vehicle, asking questions, demanding to see documentation. But hey, the surprise and fear is gone, at least according to the U.S. Supreme Court, because you see fellow motorists being stopped in front of you and visible signs of police officers’ authority are comforting. Well, NOT FOR THIS GUY!

Now that there is a basic understanding of DUI-Checkpoints, next blog will readdress DUI-Checkpoints and talk about one Florida Attorney’s controversial advice for avoiding contact with police officers during a checkpoint stop.