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OVI refusal ends in acquittal

Recently, Rittgers & Rittgers attorney Neal Schuett won an OVI trial where the client was acquitted on all charges, including possession of marijuana.

The client was pulled over at a rest stop off 71 near Lebanon, Ohio at approximately 4am. The Ohio State Patrol trooper stated that he noticed a taillight was out on the client's truck. The trooper claimed that upon engaging with the driver, the driver's speech was slow and slurred, and that the driver had glassy and bloodshot eyes. After having the driver step out of his vehicle, the trooper smelled an odor of alcohol on the driver's breath and noticed that he was unsteady on his feet.

The driver admitted to drinking "wine" though he did not say when or how much. The driver also stated that he was very tired and weak because he had been up for a long time and was coming back from a trip to North Carolina. The trooper noted that the driver was continuously chewing on something during the encounter.

The trooper then asked the driver to submit to the standard field sobriety tests. The driver consented to taking the HGN (horizontal gaze nystagmus) test; the trooper noted six out of six clues that his training states are signs of intoxication. Given his fatigue and weakness from lack of sleep, the driver did not consent to performing the Walk and Turn test or the One-Leg Stand test. He also later refused to submit to a breath test at the station. During an inventory search of the truck, the trooper found a small amount of marijuana in the pouch behind the driver's seat. The driver was charged with OVI (refusal) and possession of marijuana.

At trial, Schuett was able to get the trooper to admit that his training taught him that indicia of intoxication that he noted were also consistent with extreme fatigue. He also was required to admit that the driver did not give a specific time for when the wine was consumed or what amount of wine he consumed. There were no open or closed bottles in the vehicle; moreover, it was during the height of the COVID-19 lock down so most restaurants were closed or certainly had been closed for many hours by 4am. The trooper was also required to admit that he had never met the driver before to hear him speak-he has a thick accent-and that the officer did not require the driver to remove the food items from his mouth until they were at the station. The officer compared what he saw in the driver's mouth to chewing tobacco and that he found betel leaves and nuts in the passenger seat.

Schuett won his motion to dismiss the marijuana charge for lack of evidence, meaning the only matter before the court at the end of the trial was the OVI refusal. Through further testimony it was learned that the driver had been up for more than 36 hours driving family to and from North Carolina, that he had one small glass of wine with dinner, and that betel nuts have a strong odor.

After deliberation, the driver was acquitted of all charges.

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