February 6, 2017

The Ninth District Court of Appeals recently came out with an important decision regarding probable cause to arrest at DUI checkpoints. The case arose in Summit County, Ohio and is captioned State of Ohio v Steven Hopp.

DUI checkpoints have been frequently used in Ohio. At these checkpoints the police set up at a location and stop motor vehicles passing through to check for signs of impaired driving. If the officer thinks the motorist may have been drinking they will ask them to step out of their vehicle for field sobriety tests.

In the case mentioned above the Summit County Sheriff was operating a checkpoint in Akron, Ohio. Mr. Hopp entered the checkpoint and was stopped by a deputy. The deputy noticed a strong odor of alcohol coming from the car and slightly slurred speech from Mr. Hopp. The deputy then asked him to perform field sobriety tests. He was later arrested and given a breath test which was over the legal limit. Mr. Hopp’s attorney challenged the admissibility of the field sobriety tests and they were not allowed into evidence but the lower court found that there was still probable cause to arrest Mr. Hopp for DUI. The Court of Appeals reversed and found there was no probable cause to arrest. This means that any evidence stemming from that arrest is suppressed, including the breath test.

This case is very important because it discusses what the police need for probable cause to arrest for DUI. It is not illegal to drink and drive. It is illegal to drink and drive while impaired. At DUI checkpoints cars are usually stopped without the officers observing any bad driving. In this case there was no evidence of impaired driving. The smell of alcohol and slightly slurred speech were not sufficient evidence of impaired driving to make an arrest. The breath test can’t come into evidence because there was no basis to arrest Mr. Hopp to begin with, so he should never have been given the test.

The following is some practical advice for persons entering a DUI checkpoint. First, do not make any admission to drinking. Secondly, there is no requirement for you to take field sobriety tests, so you should never do so. Officers never tell people they don’t have to take these tests. They just start checking the eyes and move on from there. If you are ordered out of your vehicle you should comply but do not let them check your eyes and refuse to perform any other tests. Under the guidelines of State v Hopp there will not be probable cause to arrest you without further evidence of impairment.

The final thing we learn from this case is that people should not be afraid to stand up for their rights and challenge a bad arrest in court. Within the past week I represented a client who was arrested for DUI and took a breath test that was well over the legal limit. As in the case mentioned above, there was no probable cause to arrest and the entire DUI case was thrown out. The ramifications of a DUI conviction follow a person for the rest of their life, and more people should challenge the many bad arrests that we are seeing made in DUI cases.