Can Political Subdivisions be Liable When the Actions of Their Police Officers Permit an OVI Offender to Drive?

A recent Ohio Supreme Court case has opened a Pandora’s box. In the case of Estate of Graves v. City of Circleville, 2010 Ohio 168, the court let stand a lawsuit filed against a city and its police officers resulting from the death of an individual killed by a drunk driver.

In the case, a multiple OVI offender names Copley was arrested, once again, for OVI. The next afternoon Copley was released. Finding no “hold” on the vehicle, the police released the vehicle to Copley. The next morning Copley drove his vehicle while intoxicated and caused a collision killing both he and Graves.

The estate filed suit against the officers, alleging that they had breached their duty to Graves by failing to remove Copley's license plates from his vehicle and by releasing the vehicle to him. More specifically, the estate claimed that (1) R.C. 4507.38 required that Copley's vehicle be held until his initial court appearance because he had been charged with driving on a suspended license and (2) R.C. 4511.195 required that Copley's vehicle remain impounded because he had been convicted of operating a motor vehicle under the influence of alcohol ("OMVI") within the prior six-year period. The estate alleged that the officers were aware that Copley was a recidivist drunk driver who was driving on a suspended license and that the officers violated the law by allowing Copley to obtain his vehicle from the impound lot. The estate further alleged that the officers acted wantonly, recklessly, and with complete disregard for the foreseeable consequences of their actions.

The city and officers defended themselves based upon Ohio’s Sovereign Immunity Statute contained in O.R.C. Chapter 2744. That statute bars any suit against any political subdivision of the state and/or its employees in the performance of their duties. However, the one exception is when the employee acts in a wanton and reckless manner (O.R.C. 2744.03(A)(6)(b)). The city asked the lower court to dismiss the case on that basis.

In its ruling, the court acknowledged the sovereign immunity statute but alluded to the Plaintiff’s claim of wanton and reckless behavior. Therefore, it remanded the case back to the lower court to determine the culpability of the officer’s behavior.

The Consequences of Refusing a Chemical Test

Recently, I received my new telephone books and glued to the front of the book was an advertisement from a local attorney with his “Advise When Stopped for a DUI.” One of his prominent pieces of advise was “Never....Never Agree to take a Breathalyzer Test.” Is this blanket advise sound? In some instances yes. In most instances no. Like most advise, the surrounding circumstances play a major role in the decision. This blog discusses the consequences of one’s refusal.

First, one’s refusal to agree to take a test is a violation of Ohio’s “implied consent” statute. That statute, O.R.C. 4511.191, sets forth the law that the right to drive in Ohio implies the driver’s agreement to submit to a chemical test when requested. They may refuse, but that refusal will result in a one year suspension of their driving privileges in Ohio.

In addition to one’s violation of the implied consent statute, that refusal will trigger the new twenty year “look back” rule. Ordinarily, the enhancement provisions of Ohio’s OVI laws depend upon the number of OVI convictions within the prior six years. As a result of a refusal, the enhancement provision are triggered for any prior OVI violations in the last TWENTY years.

Finally, a recent Ohio Supreme Court decisions permitted courts to increase a violator’s penalties for refusing a chemical test. Historically, Ohio courts held to the rule that while a person’s refusal to take a test violated Ohio’s implied consent law, that person did have a constitutional right to refuse. As such, courts rarely increased a person’s penalties for their refusal to take a test. The Ohio Supreme court’s ruling changed that. The court ruled that the right to drive in Ohio is a privilege and not an inherent constitutional right. Therefore, a court is permitted to increase penalties for refusing without violating the person’s constitutional rights.

Allow me to provide you an example of the hornet’s nest that can result from one’s refusal to take a test. This was true case. My client was driving home from his girlfriend’s house where they were watching a football game. While watching the game, they had a pizza and a “couple of beers.” At one time my client was a heavy drinker and had several violations for OVI earlier in his life. But he had reformed and had no violations for OVI in the last six years. On the way home, he crossed the center line and was stopped by the local police. When asked to take a test, he refused.

Let’s assume he had taken the breathalyzer and been convicted. As a first time offender in six years, he would have faced a first degree misdemeanor carrying the following possible sentence:

Three days in jail or a three day driver’s intervention program, a $375-$1075 fine, a license suspension for six months to one year, and the right to request limited driving privileges for work, medical, etc after fifteen days.

So what were the consequences of his refusal?

First, he received a suspension of his driving privileges for one year. But, that wasn’t the worst of it. His refusal triggered the twenty year look back rule. While he had no violations in the last six years. He had five others in the prior twenty years. Therefore, under Ohio law, he faced a forth degree felony OVI conviction as it was his sixth violation in twenty years. He faced the following penalties: Actual incarceration for a minimum of 120 days (four months) up to 1 year, a $1350-$10,500 fine, a mandatory alcohol addiction program, license suspension for three years to life with no privileges for three years, an alcohol interlock on any car he drove, and a forfeiture of his car to the State of Ohio (he had just purchased, for cash, a new Jeep Cherokee).

So should he have agreed to take the breathalyzer? Of course. Even if convicted, the consequences were minimal compared to what he faced as a result of his refusal.

Knowing the accused’s background is critical in properly advising them. Offering blanket advise against submitting to a test can have dire consequences.