Reasonable and Articuable Suspicion

If you are a reader of this blog, I’m sure you’ve read the statement “reasonable and articuable suspicion” in the context of an OVI stop. As enumerated in many of my blogs, an officer must justify his request that a driver exit their vehicle and submit to field sobriety by having a reasonable and articuable suspicion that the individual is driving under the influence. This is done by the introduction of facts that, in summary, would lead the reasonable officer to such a conclusion.

In the past, I stated that the smell of alcohol and a de minimus traffic violation is insufficient (see “When Can I be Asked to Take Field Sobriety Tests?”). The courts have struggled with this question, taking each matter on a case by case basis with the officer testifying to his initial observations. The court then makes the determination, based on the officer’s testimony, whether those observations reach the level of reasonable and articuable suspicion.

Now one court has identified what factors it will look at in determining this question. In the case of State v. Foster, 2009 Ohio 4764, the Fifth Appellate District (Tuscarawas County), has listed the following factors:

(1) the time and day of the stop (Friday or Saturday night as opposed to, e.g., Tuesday morning);

(2) the location of the stop (whether near establishments selling alcohol);

(3) any indicia of erratic driving before the stop that may indicate a lack of coordination (speeding, weaving, unusual braking, etc.);

(4) whether there is a cognizable report that the driver may be intoxicated;

(5) the condition of the suspect's eyes (bloodshot, glassy, glazed, etc.);

(6) impairments of the suspect's ability to speak (slurred speech, overly deliberate speech, etc.);

(7) the odor of alcohol coming from the interior of the car, or, more significantly, on the suspect's person or breath;

(8) the intensity of that odor, as described by the officer ('very strong,' 'strong,' 'moderate,' 'slight,' etc.);

(9) the suspect's demeanor (belligerent, uncooperative, etc.);

(10) any actions by the suspect after the stop that might indicate a lack of coordination (dropping keys, falling over, fumbling for a wallet, etc.); and

(11) the suspect's admission of alcohol consumption, the number of drinks had, and the amount of time in which they were consumed, if given.

The court concludes with the following: “All of these factors, together with the officer's previous experience in dealing with drunken drivers, may be taken into account by a reviewing court in determining whether the officer acted reasonably. No single factor is determinative."

While the determination made by this court of appeals is limited to the jurisdiction of that court, I believe the list of factors used by this court is an excellent list of criteria when determining reasonable and articuable suspicion.