Specificity in Suppression Motions Vitally Important in the Defense of DUI/OVI Cases

A recent Ohio court of appeals case illustrates the importance of specificity in preparing any motion to suppress. The case, State v. Fink, is an exceptional well written opinion the explains Ohio law regarding the requirement that Defendants must state specifically the facts and law the supports their request to have certain evidence suppressed.

In the case, the Defendant was involved in a one vehicle accident. The offices smelled alcohol on his breath and noticed his speech was “lethargic and kind of slow.” As a result, the officers asked the Defendant to perform certain field sobriety tests. At the conclusion of the tests, the Defendant was charged with driving under the influence along with other charges that are not relevant to this discussion.

The Defendant filed a motion to suppress all field sobriety tests. The state said “...the defendant, in filing a motion to suppress in a criminal proceeding, must "state with particularity the grounds upon which it is made and shall set forth the relief or order sought...This requires the defendant, in order to be entitled to a hearing on his motion to suppress, to state the motion's legal and factual bases with sufficient particularity to place the prosecutor and the court on notice of the issues to be decided...Once the defendant satisfies this initial burden, thereby providing notice of the issues to be determined at the suppression hearing, the burden then shifts to the state to show the requisite level of compliance with the applicable testing standards.”

The issue arises when the Defendant merely states his ground in general terms. To quote the court, “The extent of the state's burden of proof establishing compliance with the applicable standards "only extends to the level with which the defendant takes issue with the legality of the test...As a result, where the defendant's motion to suppress merely raises issues in general terms and is not sufficiently specific, the state's burden to show compliance is slight and it need only "present general testimony that there was compliance."

While the Defendant may set forth the specific issues in cross-examination of the officer, his failure to specifically state the issue nor cross examine the officer on that issue severely lessons the burden on the prosecution.

As the court stated, “...this court has repeatedly been faced with OVI cases where the defendant files a boilerplate motion to suppress that merely contains a laundry list of virtually every fathomable defect that could occur in the collection of evidence...Appellant's motion lists the evidence he seeks to have suppressed, including field sobriety tests and observations of the police officer, and is followed by a number of vague grounds upon which the motion is based, 4 including the general claim that "the tests were not administered in substantial compliance with the testing standards in effect at the time the tests were administered." These stated grounds, although sufficient to place the state and the court on notice that he challenged the administration of the field sobriety tests in general, fail to provide anything more than the same vague language that we have considered insufficient to raise the state's slight burden previously...In addition, appellant's accompanying "Memorandum in Support" is nearly entirely comprised of boilerplate language that does nothing more than relay legal concepts, only some of which were applicable, and provides only one paragraph evidencing the specific facts of the case.

“Further, although the necessary factual basis can be obtained during cross-examination at the motion hearing, appellant failed to do so in this case... After reviewing the record, appellant failed to ask specific questions during his cross-examination to support his claim that the NHTSA standards were not followed. Instead, appellant's cross-examination, which spans a total of four pages, merely consists of generalized questions regarding the road conditions observed and listed on the incident report, the arresting officer's observations during the administration of the field sobriety tests, and whether he was familiar with the NHTSA manual. As a result, we find appellant's questioning also failed to provide any factual basis with sufficient particularity to raise the state's slight burden of proof”

This case is testimony to the fact that a Defendant MUST state in sufficient detail the law and facts that support his motion to suppress, and in examining the police officer MUST produce evidence with particularity regarding the basis of his motion.