When Further Indicia Of Intoxication Is Missing: How An Odor Of Alcohol Combined With Glassy Or Bloodshot Eyes Might Not Be Enough Of A Reasonable Basis For Field Sobriety Tests

Back in my days of law school, my contracts professor would state over and over and over to the class that each case is about the FACTS!  The facts are so important, that he believed law school should be called facts school, since facts drive a case and law is secondary.

Well, as much as I hated contracts, this professor is 110% correct when it comes to the facts in an OVI case.  The facts can and will change the outcome of an OVI case, even when the case is a very close call.  With that, let’s take a walk down the beer aisle and discuss a close call with State v. Hall, 2016-Ohio-5787.

In Hall, Hall was driving his motor vehicle around the witching hour of 1:30 a.m., when he decided to make a left hand turn onto another street.  Unfortunately for Hall, there was a Trooper, who no doubt was just itching for an OVI arrest that night, observing him when he made that left hand turn.  And wouldn’t you know, according to the Trooper, Hall went over the double yellow lines.  Upon the Trooper activating his overhead lights, Hall immediately pulled over and waited for further instructions from the Trooper.

While the Trooper was talking with Hall, he detected an odor of alcoholic beverage emanating from the interior of the vehicle.  The Trooper also noticed an odor of marijuana, as well as Hall’s eyes being red, watery, and bloodshot.  Well, based on the odor of alcoholic beverage, odor of marijuana, and glassy bloodshot eyes, the Trooper ordered Hall out of his vehicle to conduct field sobriety tests.

Hall does not do so well on the field sobriety tests, and is subsequently arrested.  Calling shenanigans, Hall takes this to a motion to suppress and ultimately to the appellate court.  Hall’s goal was to either suppress the initial stop or being detained for field sobriety tests.  There was some good analysis of the initial stop, but the appellate court found that the initial stop was good.  So, I am going to concentrate on the Trooper’s detainment of Hall for field sobriety testing.

To start off, requiring a driver to submit to a field sobriety test constitutes a seizure under the Fourth Amendment, but courts generally hold that the intrusion on the driver’s liberty resulting from a field sobriety test is minor, and the officer therefore only needs reasonable suspicion that the driver is under the influence of alcohol in order to conduct a field sobriety test.  State v. Knox, 2006-Ohio-3039.

So what would constitute reasonable suspicion for field sobriety test(s)?  Courts have held that “where a non-investigatory stop is initiated and the odor of alcohol is combined with glassy or bloodshot eyes and further indicia of intoxication, such as an admission of having consumed alcohol, reasonable suspicion exists.”  State v. Wells, 2005-Ohio-5008

To make this easier, I am going to list impairment clues in the Trooper’s favor and non-impairment clues in Hall’s favor.


1)         Odor of alcohol beverage emanated from Hall’s car

2)         Odor of alcohol beverage on Hall’s person

3)        Red eyes

4)        Watery eyes

5)        Bloodshot eyes

6)        Traffic infraction


1)        Carried on a basic conversation with Trooper regarding his fishing pastime

2)        Carried on a basic conversation while obtaining his standard driver’s paperwork

3)        Did not slur his speech

4)        Did not fumble his wallet

5)        Did not stumble upon exiting his vehicle

6)        Did not sway upon exiting his vehicle

7)        Understood the requests to walk to the Trooper’s cruiser for a pat-down


9)        Traffic violation was for a marked lane violation during a left turn, without speeding or swerving.

With the above, the appellate court found that the initial traffic stop was permissible, but there was no reasonable basis for the Trooper to ask Hall to step out and participate in field sobriety testing.

Facts! Facts! Facts!  Most might have thought this case was a loser based on the typical odor of alcohol with red, watery, bloodshot eyes!  But it is all about the facts!  Look how many great facts Hall had to show he was not impaired!

Another example of what an experienced OVI attorney can do for you when you believe all hope is lost in your OVI case!


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