OVI and Its Ramifications on Employment

Many of my clients argue the necessity of legal representation during DUI/OVI prosecution. Other than the obvious penalties, they argue there is little, if any, issues regarding their everyday lives. This may not be true. A prime example of how a DUI conviction can have far reaching affects was just driven home by a recent Ohio Supreme Court case.

In the case of In Re: Corrigan, the Supreme Court struck down a young man’s attempt to take the Ohio Bar Examination and thus, practice law. In that case, the bar applicant (Corrigan) was interviewed by a local bar association as required by the Rules of Admission to the Ohio Bar. During the interview it was revealed that the Corrigan had been arrested previously for DUI and attempts at rehabilitation were met with indifference and failure by the applicant. It is important to note that the DUI conviction arose from an accident that caused serious physical injuries to others, but that aspect of the conviction was not seriously addressed by the court as much as the applicant’s continued failure to address his alcoholism.

As a result, the court sustained the committee’s recommendation that the applicants request to sit for the bar exam be denied but was permitted to apply for a future bar exam but only after he “...first submit[s] to the board a psychiatric evaluation from a psychiatrist or psychologist approved by the board and licensed in the state of Ohio, as well as an assessment from an alcohol counselor certified in the state of Ohio, and demonstrate by clear and convincing evidence that he possesses the requisite character, fitness, and moral qualifications for admission to the practice of law.”

While this might be an extreme example, it does demonstrate the ramifications of a DUI conviction. Many professions requiring licensing will review a person’s application and background to determine if they are of “good moral character,” and deny their application if the committee finds issue with the applicant’s fitness.

The state has even passed laws restricting employment to those convicted of DUI (see my blog regarding Commercial Driver’s Licenses - May 29, 2009).

Therefore, the need for proper representation is paramount when facing a DUI charge. You need the advice of a professional who can advise you of your legal rights as well as the long-term ramifications to you professionally.

Sentencing in DUI Cases

If you’ve read this blog, I have, on numerous occasions, referred to sentencing guidelines when discussing multiple violations of Ohio’s DUI law. To reiterate, DUI sentences are enhanced if found guilty of additional DUI offenses within a 6 year period (See Judge Jennifer Weiler's DUI Guideline Charts). I’ve also discussed the right of a judge to sentence a defendant to more than the minimum for various reasons (see my blog regarding a defendant’s refusal to submit to a test). Recently, the Mahoning County Court of Appeals sustained a lower court’s decision to sentence a defendant to a maximum 5 years in prison for his second felony DUI

Unfortunately, many, including attorneys, habitually think of DUI sentences in terms of the minimum, i.e., first offense 3 days, second offense 10 days, etc. When preparing for sentencing, most contemplate the minimum sentence without taking into effect the range of sentencing the court is permitted to use. If we look at Judge Weiler's charts, under the column labeled "incarceration," the court can sentence an offender 3 days to 6 months for a first offense, 10 days to 6 months on the second, 30 days to 1 year on the third, and so on. Note further, the chart shows a doubling of these sentences if other factors are present such as a breathalyzer reading of .17 or more or a refusal to take a test.

But, in preparing for sentencing, one should always be cognizant that any judge could sentence a defendant to a greater sentence than the minimum. Ohio’s sentencing laws do give judges some guidelines to use in sentencing and, in fact, does recommend the minimum sentence for a first offender if no other recidivism factors (factors that would tend to point to repeat offenses) are present. But, these guidelines, according to statute, apply to felony sentencing only. Therefore, these guidelines are not applicable until the offender has reached their 4th offense within 6 years.

As a result, in misdemeanor violations such as lower tier DUI’s (3 or less offenses in 6 years), it is in the discretion of the court to determine length of sentence. In my experience, judges will take the following factors into consideration during sentencing:

1. Prior DUI convictions outside the 6 year period.

2. Traffic and criminal record.

3. Refusal to take the test.

4. Lack of cooperation with the police.

5. History of alcohol or drug abuse.

Therefore, it is vitally important that you be aware that a court, in its discretion, can sentence a defendant to more than the minimum and be prepared to address this issue at the time of sentencing.

Should I Refuse to Take the Breathalyzer?

As long as breath/alcohol devices were invented the great debate was - Should I agree to take the test? Many of my colleagues say under no circumstances should you take the breathalyzer. Some lawyers have even gone so far as to advertise that position. I’ve seen business cards with “What should I do if I’m stopped for DUI?” on the back of attorney’s cards,” advocating that under no circumstances should you agree to take a test. I’ve even seen it in telephone books and other printed media. What is the answer - Should I or should I not take the breathalyzer? The answer is much more complicated than first thought and isn’t so simplistic as to justify the thought that one shouldn’t take the breathalyzer under any circumstances.

The usual scenario is as follows: The accused is leaving a party, bar or a friend’s house having just ingested a quantity of alcohol - beer, wine, cocktails, etc. On their way home they are observed driving erratically - speeding, weaving, taking a side turn, not stopping at a stop sign, etc. A police officer stops the driver and asks for their driver’s license. The driver rolls down their window and while doing so, the officer detects the smell of alcohol. After asking some investigatory questions, the office determines that there is sufficient evidence to warrant further investigation by way of field sobriety tests. The driver performs these tests and the officer determines the driver has displayed sufficient clues to warrant the officer to believe that the driver might be driving under the influence. He places the driver in the police car and transports the driver to the policed station, where additional questions are asked, the driver is read the back of Form 2255 - the consequences for failure to take the test and then asked to take a breathalyzer test.

Now, should the driver take the test? That’s the $64 question and one that warrants a serious thought. The answer is complicated as the answer requires knowledge of the law and other issues that I will call “X” factor.

THE LAW

The DUI /OVI Law

If you have followed my blog and gone to my web site, you should have an understanding of the DUI/OVI law. Basically, if you are found guilty you face enhanced penalties if you have prior convictions in the last six years. The complete list of penalties can be viewed using the outstanding charts prepared by Judge Jennifer Weiler of the Garfield Heights Municipal Court.

If you are first offender, you face 3-days in jail or the DIP school, a minimum 6-month suspension, plus fines and probation. A second offense garners a mandatory minimum of 10-days in jail, and enhanced suspension and penalties. Penalties get larger as the number of offenses increase within a 6-year period. Complicating the issue is the fact the judges are given a parameter. For a first offense, the minimum sentence is 3-days. But a judge can give an offender up to 6-months incarceration. Once again, these parameters are enhanced based upon the number offenses incurred in a 6-year period . So for example, lets assume this is your first offense in the last 6 years. But you had an additional DUI conviction 8 years ago. In reviewing your record, a judge might sentence you to more than the minimum and some judges do just that. While the vast majority of judges sentence first offenders to the minimum, the “X” factor comes into play - what is your driving record in past years?

Further complicating this issue is the automatic enhancement if the reading exceeds .17. Once again, look at Judge Weiler’s charts. You will note that every penalty is doubled if the breathalyzer reading is greater than .17 (just over twice the legal limit).

The Implied Consent Law

Further convoluting the issue is Ohio’s Implied Consent Law. Basically, it mandates that anyone having an Ohio driver’s license agrees to submit to a chemical test when asked by the proper authorities. While the driver can refuse, the law imposes a mandatory one year suspension of driving privileges if the accused refuses to take the test.

The “X” factor in this is the fact that some judges will enhance your sentence if the record indicates a refusal to take the test. If you read my June 3, 2009 blog you will note the Fifth Appellate District Court sustained a judges right to enhance an OVI sentence due to the defendant’s refusal to take a test. In that case the judge added an additional 10-days in jail for refusing to take the test.

OTHER “X FACTORS

There are a number of other issues that come into play in determining whether to take a test. Among these are:

1. Do I have a Commercial Driver’s License? If I do, I face draconian penalties if found guilty -see my May 29, 2009 blog.

2. Was I involved in a car accident that could have a devastating financial effect?

3. What is the judge’s reputation in that jurisdiction for enhancement for refusing to take a test.

4. If I ask to speak to an attorney prior to my taking the test, how much privacy will I have? You certainly don’t want an officer listening to what could be inculpatory statements made by you during your telephone consultation.

5. Legal ethics. Can an attorney give you proper legal advice and be assured you understand everything when you are allegedly under the influence?

6. Honest self-evaluation. How many drinks did you really have? How honest are you being to the police and your attorney, if you speak to one? Are your truly able to think and analyze the situation given the amount of drinks you ingested and the pressure you’re under being in police custody? Basically, are you able to think straight given the totality of the circumstances?

Based upon the above let’s take some examples:

1. Let’s assume this is your first offense. You have no priors. While you did have a glass of wine and one after-dinner drink, you are coherent and able to analyze your situation with confidence. The judge in that jurisdiction while fair, does frown upon those who refuse to take a test. Now lets think about the consequences of a refusal. If you take the test, chances are you will get the minimum - the 3-day DIP school and minimum fines and a 6-month suspension. If you refuse, Ohio law mandates a 1-year suspension of you license and if you are convicted the judge may enhance your sentence due to your refusal. So in this instance you might consider taking the breathalyzer.

2. This is your first offense. You have no priors. While you did have a glass of wine and one after-dinner drink, but you are coherent and able to analyze your situation with confidence. The judge in this jurisdiction does not have a reputation for enhancing your sentence for your refusal to take a test. But, you are a truck driver and have a commercial driver’s license (CDL). If convicted you face a mandatory 1-year suspensions of the your CDL - with no work privileges. In this instance you might want to think about refusing the breathalyzer for obvious reasons.

3. This is your third offense. You were quite inebriated to the extent that you had difficulty standing up and clearly flunked all the field sobriety tests. You are facing a minimum of 60-days in jail, 180 day suspension of your driving privileges and other penalties all of which will be doubled if the reading exceeds .17. In this instance, refusing the breathalyzer might be the right decision.

Now having said all that, the decision to take or not take a test requires a complete analysis of the law and other factors that may or may not be involved in the circumstances surrounding your arrest. Your decision must be based upon a cold and honest evaluation of all these factors. Notwithstanding your state of mind, you must attempt to weight all these factors as best you can before making your decision.

Your decision can not be based upon some blanket advise given on a business card or in an advertisement. The advice set forth in these printed media are not made with a complete understanding of the circumstances surrounding your arrest.

The Use of Employer Mandated Chemical Tests in OVI Prosecutions

An unusual but important precedent was just announced by the Sixth Appellate District, Lucas County, Ohio regarding the use of employer mandated chemical tests in OVI prosecutions. The case, Ohio v. Groszewski, 2009 Ohio 4062, appears to champion a defendant’s Fourth and Fifth Amendment rights.

The case involved a City of Toledo employee who was ordered by his supervisor to submit to a breathalyzer test per his employment contract. The contract required all employees to submit to a chemical test when asked. The employee went to the hospital to have the test performed. The results of the test indicated a blood alcohol level of 0.093, just above the legal limit (.08).

At the time a Toledo Police Officer was also at the hospital on unrelated business when he saw the Toledo City Director of Public Service speaking on his cell phone with a Toledo Police captain. The officer then got on the cell phone and was informed that the Defendant may have been driving a city vehicle under the influence. The officer reentered the hospital, interviewed the defendant’s supervisor who said he saw the defendant drive a city vehicle. The results of the breathalyzer were then revealed to the officer. He interviewed the defendant who made incriminating statements and asked the defendant to perform field sobriety tests. The defendant was then arrested for OVI and asked to submit to a blood test.

Prior to trial, the defendant filed a motion to suppress asking that all tests and statements be suppressed. These were denied by the lower court and the defendant appealed.

The appellate court stated, "The Fifth amendment protects persons against compelled self-incrimination, and any testimony given under compulsion invokes that constitutional right, Murphy v. Waterfront Commission, 378 US 52. If the state forces a public employee to choose between either answering incriminating questions or forfeiting his job for refusing to answer, the state cannot use the employee's statements against him in a subsequent criminal prosecution if the employee chooses to answer because the statements were not given voluntarily, Garrity v. New Jersey, 385 U.S. 493. Thus, all statements made by the public employee under these conditions become immunized testimony."

Regarding the admissibility of the breathalyzer and blood tests, the court opined that ...”a breath test or a blood test to determine alcohol content for the purpose of proving a criminal offense, is a search and seizure within the meaning of the Fourth Amendment. Schmerber v. California, 384 U.S. 757. The Ohio Supreme Court has previously held that the Fourth Amendment prohibits placing a defendant in a position of choosing between allowing a warrantless search or facing criminal penalties, Wilson v. Cincinnati, 46 Ohio St.2d 138.”

The court went on, “In this case, appellant was compelled to submit to the breathalyzer tests and blood tests, or risk forfeiting his employment. In addition, his employment contract limited his consent to the test and release of the results only to the city of Toledo. Nothing in the agreement refers to the possibility of criminal prosecution or release of information to any law enforcement agency. Appellant was not involved in an accident and was not observed by police to be driving in such a way that would indicate that he was under the influence of alcohol. Since appellant did not submit to the test pursuant to a police investigation or court order, both tests would have been warrantless searches in relationship to any potential criminal action.”

“Likewise, any sobriety tests performed were not incident to any initial police investigation. Rather, they were performed only after appellant agreed to present himself for the employer's requested testing. Therefore, no probable cause initially existed for police even to be present at the hospital for any type of investigation. Appellant submitted to testing solely at the request of his employer, at the advice of his union representative, with only the potential penalty of losing his job as a consequence.”

It is important to note that the court did express it condemnation of the defendant’s actions, but “neither [could they] condone the "ambush" tactics that were employed to create a criminal offense from an employee's compliance with his employer's drug/alcohol testing requirement."

As a result, the court overruled the findings of the lower court and suppressed both the tests and statements of the defendant.

Therefore, under these limited set of facts an employee can be assured that tests taken in compliance with their employment agreement can not be used in a subsequent criminal proceeding. But, it is important to note the narrow parameters of these facts. First, the employment agreement had no covenant permitting the city to share the test findings with any other agency. Second, the officer viewed no independant indicia of a traffic violation or other criminal activity that would justify an investigatory stop. Had any of the facts been different from those in this case, the finding might be different.

Can a Driver be Stopped Based upon Information Acquired from an Informant?

In passed blogs I’ve discussed the term “probable cause” as it relates to an initial stop and ultimate arrest. In both instances these discussions involved information gathered solely by observations of the arresting officers. But, what if the officer does not personally observe the driver? Can a stop be initiated based upon information provided by an informant?

The simple answer is yes. A recent Stark County Court of Appeals opinion contains an excellent discussion of the topic. In the case, State v. Yoder, a citizen observed the defendant urinating in the parking lot of a restaurant and then stagger to the driver’s side of the defendant’s vehicle. The informant called 1-800-GRABDUI, providing his name, contact information, and the current location of driver. The informant gave the dispatcher a description of and the license plate number of the defendant’s vehicle. The caller further stated he observed the defendant having trouble walking to his vehicle and staggering badly, prior to driving the vehicle. The informant followed the defendant’s vehicle to the parking lot of a car wash, and waited for the police to respond. The officers waited for the defendant to exit the car wash and stopped the vehicle as it exited the car wash.

The officer approached the driver’s side of the vehicle and asked for the defendant’s driver’s license. At the time, the officer smelled a strong odor of alcohol and noted the defendant was “thick tongued.” The defendant was asked to exit the vehicle and to perform standard field sobriety tests and was subsequently charged with OVI. Prior to trial, the defendant filed a motion to suppress claiming the officer illegally stopped him having not personally observed indicia of the violations for which he was charged.

In its opinion, the court stated, “An investigative stop does not violate the Fourth Amendment to the United States Constitution if the police have reasonable suspicion the person stopped is, or is about to be, engaged in criminal activity...Reasonable suspicion can arise from information that is less reliable than that required to show probable cause...But it requires something more than an "inchoate and unparticularized suspicion or 'hunch'...The Fourth Amendment requires at least a minimal level of objective justification for making the stop.”

“Where the information possessed by the police before the stop was solely from an informant's tip, the determination of reasonable suspicion will be limited to an examination of the weight to be given the tip and the reliability of the tip. Courts have generally identified three classes of informants: the anonymous informant, the known informant from the criminal world who has provided previous reliable tips, and the identified citizen informant. An identified citizen informant may be highly reliable, and therefore a strong showing as to other indicia of reliability may be unnecessary.

The defendant argued that the officer had no personal knowledge which would lead him to believe that the defendant was violating the law; that the officers failed to personally observe any evidence of a traffic violation that would justify the stop.

The court quoted Adams v. Williams, a US Supreme Court Case in stating, “A tip which standing alone would lack sufficient indicia of reliability may establish reasonable suspicion to make an investigatory stop if it is sufficiently corroborated through independent police work.”

In applying this jurisprudence the court found that the informant’s information was “trustworthy and due significant weight.” Reciting the facts, the court stated the informant had identified himself, making him a known informant subjecting his observations to high reliability that the officers could rely upon.

As such, the appellate court upheld the lower court’s denial of the defendant’s motion to suppress.

Therefore, the answer to the questions is yes. A driver may be the subject of an investigatory stop based upon information provided by an information supplied by an informant provided that information is reliable.

(While this case does articulate this topic well, this writer does question the court’s failure to address the issue of the officer’s failure to see some indicia of evidence of erratic driving or other traffic violation that would justify a stop. The facts set froth in the court’s synopsis of the case fails to indicate whether the informant or the officers observed evidence of any underlying traffic violation. One can only speculate that, perhaps, the defendant failed to set forth this issue in his motion to suppress.)

Are Sobriety Checkpoints Legal?

Many clients have asked about the legality of sobriety checkpoints - stops where police are permitted to randomly check motorists for OVI. Sobriety checkpoints have long been scrutinized under the Fourth Amendment’s prohibition unreasonable searches. This debate is basically characterized as the right to privacy v. public safety. In other words, is the “limited” intrusion caused by such a checkpoint arise to an invasion of privacy.

The Ohio Supreme Court in State v. Goines adopted a four-part test espoused by the US Supreme Court. The court stated a vehicle may be stopped when all of the following factors are present:

1. A checkpoint or roadblock location is selected for its safety and visibility to oncoming motorists, and

2. The police provide adequate advance warning signs, illuminated at night, timely informing approaching motorists of the nature of the impending intrusion, and

3. There are uniformed officers and official vehicles in sufficient quantity and visibility to show the police power of the community, and

4. There is 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.

Using this criteria, the majority of states, including Ohio, permit sobriety checkpoints.

The National Highway Transportation and Safety Administration (NHTSA) has produced a booklet entitled “Saturation Patrols & Sobriety Checkpoints Guide” In its guide some of NHTSA’s guidelines include:

1. The use of a minimum 10-12 uniformed police officers. Law enforcement agencies should assign a sworn, uniformed officer to supervise the planning of a sobriety checkpoint. This officer needs to be highly knowledgeable of the state’s sobriety checkpoint rules and regulations.

2. In selecting the location, identify locations with a high incidence of impaired driving related crashes or fatalities. Be sure the public and officer’s safety can be of utmost priority. There must be room for proper ingress and ingress. The location must be highly visible.

3. Warning devices and signals must be located at such a distance as to give motorists adequate time to stop. Warning devices should comply with the Manual of Uniform Traffic Control Devices (MUTCD).

The Ohio Highway Patrol has written a summary of its own procedures. These include:

1. The first and perhaps the most important requirement for the establishment of a sobriety checkpoint is that the site of the check must have a long term history of alcohol-related crashes and/or incidents of impaired driving.

2. About a week before the checkpoint is conducted, public notice is given that the checkpoint will be established. It is only necessary to provide a general date, time, and location for the event.

3. About an hour or two in advance of the establishment of the checkpoint, the officer who will be in charge of the operation conducts a briefing with the police officers who will operate the various elements of the checkpoint. At this briefing, the officer-in-charge will give an overview of the operation of the checkpoint, provide each checkpoint officer a clearly defined set of operational objectives, and emphasize all the procedures needed to make the checkpoint as safe and efficient as possible.

3. Large, highly reflectorized signs are set on the side of the road well in advance of the actual checkpoint. Fully marked police vehicles are situated at these signs on the approach to the checkpoint. A second "Sobriety Checkpoint Ahead Sign" is placed at the beginning of the lane of traffic cones, fusees, and other devices that mark the boundaries of the checkpoint itself. The area is illuminated by portable lights, flares and the emergency lights of several police cars which are situated on the berm to provide additional protection for the zone.

The OSHP guidelines also discuss the necessity of using qualified personnel to conduct field sobriety tests and the use of portable breathalyzer devices. The complete summary can be found at http://statepatrol.ohio.gov/sobcheck.stm.

In summary, both the US Supreme Court and Ohio Supreme Court have authorized the use of sobriety checkpoints as long as stringent rules are followed to safeguard the constitutional rights and safety of citizens. Both NHTSA and the Ohio Highway Patrol have published guidelines to be used by law enforcement agencies wishing to use such checkpoints. Variations from the recommended procedures outlined by NHTSA and the OHP can lead to suppression of any evidence procured during the checkpoint.

When Can I be Asked to Take Field Sobriety Tests?

When a motorist is stopped and the officer is suspicious of alcohol use, the suspect is normally asked to vacate the vehicle and asked to perform tests to determine physical dexterity and metal awareness. These tests are called field sobriety tests. They normally consist of a horizontal gaze nystagmus test, a “walk-and turn” test, and a “one-legged” test. If the officer observes a certain number of “clues” the officer then may determine there is probable cause to arrest the suspect for OVI.

But many of my clients want to know what level of evidence is necessary for the officer to demand these tests. In other words, when they are stopped for some underlying traffic violation, what needs to be observed and how certain must the officer be before they can demand these tests?

Recently, the Fifth District Court of Appeal, Fairfield County, wrote an excellent opinion on the subject. In the case, State v. Strope, the Defendant was stopped for a headlight violation. While addressing the Defendant, the officer smelled a strong odor of alcohol on the Defendant’s person and observed his eyes were red and glassy. The officer asked the Defendant to vacate the vehicle and perform field sobriety tests. After observing sufficient clues, the officer arrested the Defendant for OVI. Prior to trial the Defendant filed a Motion to Suppress, arguing, in part, that the officer “...lacked reasonable suspicion to conduct field sobriety testing.”

In its opinion, the court stated,

“It is well-established that an officer may not request a motorist to perform field sobriety tests unless that request is independently justified by reasonable suspicion based upon articulable facts that the motorist is intoxicated... Reasonable suspicion is something more than an inchoate or unparticularized suspicion or hunch, but less than the level of suspicion required for probable cause. A court will analyze the reasonableness of the request based on the totality of the circumstances, viewed through the eyes of a reasonable and prudent police officer on the scene who must react to events as they unfold.”

The court went on to say:

"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."

The Defendant went on to argue that based upon the above that the officer had insufficient articuable facts to rise to the level of reasonable suspicion. The Defendant cited the case of State v. Spillers. In that case, the court opined:

“...a de minimus traffic violation, slight odor of alcohol and admission to having consumed a couple drinks was insufficient to justify the performance of field sobriety tests.”

The Fifth Appellate District disagreed with the Defendant’s argument stating that in the cited case only a “slight” smell or alcohol was observed while in the present case a “strong” smell was noted.

Based on the above, it appears an officer can ask you to perform field sobriety tests if:

1. The officer first observes a traffic or equipment violation justifying a stop and

2. The officer observes multiple indicators of alcohol use.

Substantial v. Strict Compliance

Recently, in response to the outcry from law enforcement resulting from the Ohio Supreme Court’s decision in State v. Homan, O.R.C. 4511.19(D)(4)(b) was enacted lowering the standard for the admission of field sobriety tests from strict compliance to substantial compliance. Just as the terms imply, “strict” compliance is a much higher standard that “substantial” compliance.

In the Homan case, the Ohio Supreme Court mandated that Ohio law enforcement officers must strictly comply with the standards set forth by the NHTSA standards for the administration of field sobriety tests (FSTs). Due to lobbying by many law enforcement agencies and other anti-DUI advocates, the legislature passed the above-cited statute lowering the standard to substantial compliance.

But, what is the difference between the two? In State v. McNamara, 124 Ohio App. 3d 706 the Ohio Supreme Court stated the appellate court must ... independently determine, without deference to the conclusion of the trial court, whether the facts satisfy the applicable legal standard.” In other words, the determination of whether the officer “substantially” complied with the NHTSA manual should be determined on a case by case basis. Since the statute is relatively new, the jurisprudence interpreting this standard, thus far, is scarce.

An example of this type of analysis is set forth in the recent case of State v. Davis. The case was the typical case wherein the Defendant was charged with DUI after the arresting officer had administered FSTs in the filed, determined that there was probable cause to arrest the Defendant, and the Defendant was ultimately charged with DUI. The Defendant filed his Motion to Suppress claiming the officer failed to substantially comply with the edicts of the NHTSA manual. The lower court determined the officer substantially complied with the NHTSA manual and overruled the motion.

The appellate court sustained the finding of the lower court after independently analyzing the evidence presented in the lower court. The court, in its analysis, stated that if strict compliance was still the standard, it may have determined the case differently, but, since the standard is the lower standard it determined, in this case only, that the substantial compliance standard was met.