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The days of OVIs being limited to alcohol-related impairment are gone. Recently, there has been a movement within OSHP to investigate drivers impaired by drugs. Our client was pulled over by Ohio State Highway Patrol (OSHP) after the trooper witnessed several marked lanes violations around 5pm in the evening. A non-resident of Ohio, he was near Marietta working a special project requiring long hours. Suspicious of some type of drug impairment, the trooper ordered our client out of the vehicle when he allegedly noticed dilated pupil size. He then administered the SFSTs on our client, which, ironically are only designed to indicate a percentage chance of a blood alcohol level being in excess of the legal limit. After passing the relevant standardized field sobriety tests, our client submitted to the recently used “lack of convergence” test. This is simply a test to determine whether a suspect’s eyes cross. Because our client’s eyes did not cross, the trooper placed him under arrest for drugged driving.
Our client later submitted to a chemical test which came back over the limit for Methamphetamine. Based on the level of Methamphetamines found in the chemical test, it was apparent the drugs had not been used within several days of this particular date. Much like Marijuana, in Ohio you are likely in excess of the legal limit to drive even days after drug use, long after any possible impairment still exists. Mr. Mallory filed a motion to suppress and retained a drug recognition expert, Tony Corroto, (“DRE”) out of Atlanta, Georgia. We were able to put together such a compelling motion to suppress and expert report to negotiate the OVI and OVI per se to be reduced to simply one charge of a minor misdemeanor reckless operation – the maximum possible penalty being a $150 fine. As the expert’s report revealed (and the trooper’s own training manual), the lack of convergence test is a test designed only to identify central nervous system depressant use (ie. Marijuana); quite the opposite of Methamphetamine. So: 1) either the trooper was simply not credible; or 2) perhaps people should not be arrested simply because they cannot cross their eyes?