IN THE PORTAGE COUNTY MUNICIPAL COURT

PORTAGE COUNTY, OHIO

STATE OF OHIO, ) CASE NUMBER: 20CRB1904

)
)
Plaintiff, ) JUDGE: Mark K. Fankhauser
)
vs. )
)
HANNAH JO KELLER, )
)
Defendant. ) ORAL HEARING REQUESTED

MOTION TO SUPPRESS EVIDENCE , MOTION IN LIMINE

AND FOR FINDINGS OF FACT PURSUANT TO RULE 12 (E) OF THE OHIO
RULES OF CRIMINAL PROCEDURE

Now comes the Defendant, by and through counsel, Hannah Keller, and respectfully

moves this Court to suppress evidence obtained from the warrantless seizure of the

Defendant including but not limited to:

1. Tests of Defendant’s coordination and/or sobriety and/or alcohol and/or drug level,

including but not limited to field sobriety tests;

2. Statements taken from or made by Defendant;

3. Observations and opinions of the police officer (s) that stopped the Defendant

and/or arrested and/or tested the Defendant’s sobriety and/or alcohol and/or drug level;

4. The Defendant’s alleged refusal of the alcohol and/or drug test;

5. Any and all evidence obtained as the result of the warrantless seizure of the

Defendant.

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 The Defendant submits that the burden is upon the State to justify the warrantless

seizure of the Defendant and evidence taken from the Defendant and to show why the above

evidence should not be suppressed due to the following grounds:

1. There was no probable cause to arrest Defendant without a warrant nor were there

any reasonable grounds to offer a chemical test of the Defendant’s alcohol and drug level;

2. The field sobriety tests taken by Defendant were not administered in compliance

with the standards and procedures as directed by the National Highway Traffic Safety

Administration;

Respectfully submitted,

/s/ Issa M. Elkhatib

_______________________________
ISSA M. ELKHATIB (97662)
THE ELKHATIB LAW OFFICE
The United Bank Building, Suite 502
2012 West 25th Street
Cleveland, Ohio 44113
Phone: (216) 334-3444
Fax: (440) 617-5824
E-mail: [email protected]
COUNSEL FOR DEFENDANT

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 MEMORANDUM IN SUPPORT

I. FACTS

On or about October 2nd, 2020, the Defendant, Hannah Keller, was legally operating

her motor vehicle when she was stopped by a Ohio State Highway Patrol (OHP). In the car,

were Ms. Keller and a couple friends. Defendant submits that at the time of the stop, she was

told by OHP that she was speeding. Further, Defendant submits that she had nothing to drink

and that she was not under the influence of drugs and/or alcohol. She told State Troopers of

this fact numerous times. Throughout the entire stop, while in her car or outside of it, Ms.

Keller never portrayed a characteristic that could be objectively construed as inebriation. Her

speech was never slurred. She answered all questions with prompt responsiveness.

Despite this fact, OHP had the Defendant step out of her car and perform a series of

Field Sobriety Tests. When outside of her car, there was nothing objectively indicative of

Ms. Keller’s physical demeanor that would suggest she was inebriated. In fact, Ms. Keller

maintains that she passed all Field Sobriety Tests given to her. She made unwavering eye

contact when speaking with the troopers. You can see on the dashcam video that Ms. Keller

successfully walked the straight line, as ordered by the State Trooper. When asked to raise

her leg and to count, she did so successfully. Despite not being under the influence of drugs

and/or alcohol, and passing all Field Sobriety Tests, Ms. Keller was arrested and charged

with OVI. The Trooper’s reasoning for the arrest when asked by Ms. Keller was that the

Trooper “smelled alcohol”. Defendant is moving to suppress all evidence of her illegal stop,

detention, and arrest, for the reasons cited in this motion.

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 II. LEGAL ARGUMENT

Probable cause is based on the ‘totality of the circumstances’.  Although an officer

can testify he observed symptoms of intoxication, other circumstances must be consistent

with intoxication. State v. Bracken (2001) 23 P.3d 417. Here, Ms. Keller had no trace of

slurred speech, walked heel-to-toe with no noticeable impairment, and performed well on the

One Leg Stand test.  In addition, there was no erratic driving, and the officer never

acknowledged Ms. Keller’s speeding as an indication of operating a vehicle under the

influence.  After reviewing the totality of the circumstances, one cannot objectively surmise

that the officer had probable cause to believe Ms. Keller was operating a vehicle under the

influence.

Police must strictly comply with established, standardized procedures in

administering field sobriety tests. If the established, standardized procedures for

administering the standardized field sobriety tests are not adhered to, the tests cannot be

considered by the Court in determining whether or not there was probable cause to arrest the

Defendant. State v. Homan (2000) 89 Ohio St. 3d 421. Since the Court cannot consider the

field sobriety tests for a probable cause determination, the tests are certainly not admissible at

trial. State v. Schmitt (2004) 101 Ohio St. 3d 79.

When an officer testifies that he or she has been trained to perform sobriety tests, that

officer is testifying as an expert. With regard to the “Horizontal Gaze Nystagmus” test, it is

not obvious to a layman that moving a pen in front of someone’s eye has anything to do with

sobriety nor could a layman tell anything about the result of moving the pen even if he or she

was looking over the officer’s shoulder. The very name of the test, “Horizontal Gaze

Nystagmus,” is not a term familiar to laymen. Nor is it obvious to a layman that an

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individual’s failure to walk nine steps heel-to-toe turn and walk nine steps back is an

indication of a person being too impaired to drive. In that same vain, it is not apparent to a

layman that the failure to be able to hold one foot in the air for thirty seconds is an indication

of impairment. In fact, the statistics themselves indicate that approximately one-third of all

individuals fail such test, even when they have ingested no alcohol. Moreover, the

Standardized Field Sobriety Tests have no relationship whatsoever with regard to an

individual’s performance of those tests and that person’s ability to drive an automobile.

Although Revised Code Section 4511.19(D)(4)(b) indicates that Standardized Field

Sobriety Testing must be administered in substantial compliance with the standards set forth

by N.H.T.S.A. requirements, Revised Code Section 4511.19(D)(4)(b)(iii) requires that the

administration of Standardized Field Sobriety Tests be done in strict compliance. That

section of the Revised Code requires that evidence of any and all sobriety tests be admissible

under the Ohio Rules of Evidence. Ohio Evidence Rule 702 requires strict compliance. Thus,

we are talking about expert, not lay, testimony.

Evidence Rule 702 governs expert testimony and makes it very clear that the

evidence sought to be introduced through an expert must be reliable. The word reliable is

used twice in the same subsection:

EVID R 702(C)

A witness may testify as an expert if all of the following apply:

(C ) The witness’ testimony is based on reliable scientific, technical, or other

specialized information. To the extent that the testimony reports the result of a procedure,

test, or experiment, the testimony is reliable only if all of the following apply:

(1) The theory upon which the procedure, test, or experiment is based is objectively

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verifiable or is validly derived from widely accepted knowledge, facts or principles;

(2) The design of the procedure, test, or experiment reliably implements the theory;

and

(3) The particular procedure, test, or experiment was conducted in a way that will

yield an accurate result.”

The reason that the court in Homan excluded improperly done field tests was that

they were not reliable: “When field sobriety testing is conducted in a manner that departs

from established methods and procedures, the results are inherently unreliable.” State v.

Homan (2000), 89 Ohio St.3d 421, 424.

In short, allowing unreliable evidence whether presented by an expert or not clearly

violates Evidence Rule 702. As such, Ohio Revised Code Section 4511.19(D)(4)(b) is in

conflict with Evidence Rule 702.

Evidence Rule 401 and Rule 402 would also require the exclusion of any and all

evidence regarding the administration of Field Sobriety Tests. Evidence Rule 401 states the

following:

“Relevant evidence” means evidence having any tendency to make the existence of

any fact that is of consequence to the determination of the action more probable or less

probable then it would be without the evidence.

Evidence Rule 402 states

All relevant evidence is admissible except as otherwise provided by the Constitution

of the United States, by the Constitution of the State of Ohio, by statute enacted by the

General Assembly not in conflict with a rule of the Supreme Court of Ohio, by these rules, or

by other rules prescribed by the Supreme Court of Ohio. Evidence which is not relevant is

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not admissible.

An individual’s performance on Field Sobriety Tests does nothing more than to allow

the officer to predict whether or not that individual may test over a .08 BAC, if the individual

submits to an alcohol test. Where an individual does not submit to an alcohol test, there is no

relevance to an individual’s performance on the field sobriety test. As indicated in the

N.H.T.S.A. Manual, which is now referred to by statute, it is clear that an individual’s

performance during the administration of Field Sobriety Tests equates to nothing more than

whether or not that individual would have tested over a .08 BAC if given a breath test. The

individual’s performance during the administration of Field Sobriety Tests has nothing,

whatsoever, to do with that individual’s ability to operate a vehicle.

It should also be noted that Ohio Revised Code Section 4511.19(D)(4)(b) contains a

flagrant violation of the equal protection and due process clauses of both the Ohio and the

United States Constitutions. Revised Code § 4511.19(D)(4)(b)(ii) provides as follows:

The prosecution may introduce the results of the field sobriety test so administered as

evidence in any proceedings in the criminal prosecution or juvenile court proceeding.

The obvious defect here is that only the prosecution is allowed to introduce the results

of the test. In a substantial compliance case, if the defendant passes the test and the

prosecutor does not seek to introduce the test result, the defendant is not given the same right

as the prosecution to introduce the result. The bill gives the prosecution, but not the defense,

the right to introduce exculpatory evidence.

A further due process violation results from the legislative mandate that evidence

previously found unreliable be admitted into evidence. As was noted above, the Supreme

Court found that results of improperly performed tests are “inherently unreliable.” The

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legislature says this evidence should be admitted anyway. This is a due process violation

under both the federal and Ohio Constitutions.

Furthermore, in State v. Burnside (2004) 100 Ohio St.3d 152, the Supreme Court of

Ohio, when identifying “substantial compliance,” permitted “de minimus” errors to be

excused. In the absence of expert testimony, to determine what exactly is a “de minimus”

error, is impossible.

In Homan the Court has already stated that absent strict compliance, the tests are

inherently unreliable. It is the burden of the State to show that a deviation is “de minimus”

and would not make the tests “inherently unreliable.”

The provisions of R.C. 4511.191 are not applicable unless the Defendant was validly

arrested by an officer having reasonable grounds to believe the Defendant was operating a

vehicle while under the influence of alcohol and/or drugs of abuse and was properly advised

of the Ohio Implied Consent Provisions. When implied consent warnings are misstatements

of the law, consent is involuntary and such evidence is unconstitutionally obtained under the

Fourth Amendment. Therefore the Defendant’s refusal of the alcohol test must be

suppressed. State v. Taggart, (August 29, 1987) No. 86 CA 21 Washington Appellate

unreported.

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WHEREFORE, Defendant respectfully requests that this Motion be granted.

Respectfully submitted,

/s/ Issa M. Elkhatib

_______________________________
ISSA M. ELKHATIB (97662)
THE ELKHATIB LAW OFFICE
The United Bank Building, Suite 502
2012 West 25th Street
Cleveland, Ohio 44113
Phone: (216) 334-3444
Fax: (440) 617-5824
E-mail: [email protected]
COUNSEL FOR DEFENDANT

CERTIFICATE OF SERVICE

A copy of the foregoing Motion has been forwarded to the Prosecutor, via submittal
to the Court Clerk’s Office, on March 17th 2021.

/s/ Issa M. Elkhatib

______________________________
ISSA M. ELKHATIB (97662)