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"Sufficient particularity"

Sometimes the biggest victory is when you don't lose, and that's probably the feeling among the defense bar about the Ohio Supreme Court's decision last week in State v. Codeluppi.  

Drunk driving defense works a lot like drug defense does.  The key is to keep evidence out.  In a drug case, evidence about how the cops found 130 grams of heroin in the dresser drawer in your bedroom; in an OVI case, evidence of how your client screwed up the field sobriety tests, and that he blew a .17 on the breathalyzer. 

So the key is getting the evidence suppressed, and Codeuluppi concerns the way that process is started:  the filing of the motion to suppress, and specifically, what you have to say in it. 

Basically, the law here is that you've got to do more than file a motion saying that you want evidence thrown out:  you've got to support it with a memorandum laying out your claim with enough specificity to "give the prosecutor notice of the basis for the challenge."

That's where drug and drunk driving cases diverge.  If I'm filing a motion to suppress in a drug case, all I have to do is let the prosecutor know I'm going to argue that the search didn't fall within the exception for automobile searches or search incident to arrest or stop and frisk or whatever.  But there are a lot of administrative regulations that come into play in drunk driving cases:  the field sobriety tests have to be done in "substantial compliance" with the standards set by the National Highway Traffic Safety Administration, and the blood/alcohol tests have to be done in compliance with the standards promulgated by the Ohio director of health on how they are to be administered and who's qualified to administer them.

Now, one might think that all you have to do is state in the motion that you're claiming that the field sobriety tests weren't done in substantial compliance with the NHTSA standards, or that the blood tests weren't administered properly, or weren't administered by someone who was qualified to do that.  In fact, that's pretty much what the Supreme Court said you had to back in 1994 in its decision in State v. Shindler.  In that case, the suppression motion was almost mind-numbingly specific; Paragraph 5, for example, alleged that

5. The operator of the breath testing instrument did not insure the defendant's test was conducted free of any radio transmissions from within the affected RFI zone and determined by a properly performed RFI survey as required by O.A.C. 3701-53-02(C) and Appendix G.

If it sounds like some pretty impressive work by the attorney, it's not:  he'd copied it verbatim out of a handbook on defending drunk driving cases in Ohio.  The trial court denied the "shotgun boilerplate" motion without a hearing, but the appellate court reversed, and the Supreme Court affirmed that, holding that all a defendant need do to get a hearing on a motion to suppress is "state the motion's legal and factual bases with sufficient particularity to place the prosecutor and the court on notice of the issues to be decided."  That's my emphasis, and we'll get to it in a minute.

That brings us to Codeluppi.  The defendant there had filed a motion to suppress, asserting that the field sobriety tests weren't taken in accordance with the NHTSA guidelines.  The trial court denied the motion without a hearing, and the court of appeals affirmed by a 2-1 vote, holding that the motion "failed to state with particularity any factual allegations as how the guidelines were violated.

So there's a legal and factual aspect to the motion.  In a drug case, I can't just say that in the motion that the search didn't fall within the stop and frisk exception, I've got to say why it didn't.  I don't have to say much about that; I've found that citation to Terry v. Ohio, a summary of the basic facts, and the allegation that those facts didn't give the officer reasonable suspicion to conduct a stop or a frisk is sufficient.  Frankly, I don't like to go much beyond that, because I've found that in some cases it simply tells the officer what he has to lie about.

The Supreme Court in Codeluppi decides 6-1 that the allegations here were sufficient:  the motion alleged that the test was taken under duress and under poor environmental conditions, and that the officer's analysis of the defendant's performance was biased.

That's not as sweeping as it might sound.  The court places a lot of emphasis on the fact that there was no video of the field sobriety tests in this case, and thus "defense counsel had no readily available reliable evidence from which counsel could formulate more particularized grounds regarding the police officer's failure to substantially comply with NHTSA guidelines."  Does that mean that if there is a video, you have to allege not only that the officer didn't conduct the test in accordance with the guidelines, but specifically how he failed to do that?  That's certainly an argument that's left open by Codeluppi.

The decision does contain some other good news.  I've often mentioned that standard of review is usually outcome-determinative:  you've got a lot better chance of reversal if the appellate court is reviewing the trial court's decision de novo than if it's reviewing it for abuse of discretion.  The court of appeals used the latter standard in this case, and the Supreme Court held that was wrong:  the decision of whether the motion was sufficiently particular to warrant a hearing was a question of law, not an issue for the trial judge's discretion.

In retrospect, it's hard to see what all the fuss in Codeluppi was about.  The defense bar was just hoping for a reaffirmation of Shindler, and that's what it got.  And what it should've gotten; in fact, affirmance here would have essentially required the Court to overrule Shindler.  That that didn't happen is perhaps the best news of all.  

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