8th District Vacates Conviction of Woman Charged with OVI Despite Negative Chemical Test

The 8th District Court of Appeals recently vacated the conviction of a woman charged with operating a vehicle under the influence of alcohol or drugs and failure to control a vehicle. In City of Cleveland v. Kuhlman, the court held that the defendant’s conviction was not supported by sufficient evidence, and that the trial court should have granted her motion for acquittal under Crim. R. 29.

The case arose when restaurant employees saw the defendant parked with her car over the curb in the restaurant’s parking lot. Defendant came into the restaurant. According to one of the employees, she was “obviously drunk,” however that employee made this judgment based only on seeing defendant drive over the curb, and she had no personal interaction with the defendant.

That employee called 911, and police officers responded to the restaurant. The officers testified that defendant appeared “a little incoherent,” and that she was “not walking in a normal gait.” They suspected, based on her behavior, that she was under the influence of both alcohol and narcotics. The officers took a water bottle from her car, which they claimed smelled like alcohol, but did not collect a sample of its contents. The officers then transported the defendant to the hospital.

At the hospital, nurses were able to collect a urine sample from defendant. However, she then apparently changed her mind and instructed the nurse not to give the sample to the police. Because of this, the officers marked that she refused to submit to testing, and she was charged with refusing to submit to a test. One of the officers instructed the nurses to pour out the sample. The sample was not poured out, and a test eventually revealed no alcohol or drugs were in the defendant’s system.

At trial, the jury found defendant guilty of driving under the influence and failure to control, but not guilty of refusing to submit to testing. Defendant appealed, raising thirteen assignments of error, including insufficiency of the evidence, prosecutorial misconduct, and exclusion of expert testimony.

The Court of Appeals found that there was insufficient evidence to support a conviction for operating under the influence in light of the negative test results for both alcohol and drugs. As to the conviction for failure to control, the court noted that this ordinance only applies on public roads, whereas defendant was only observed driving in a private parking lot. Therefore, the court vacated that conviction as well. Because the court found the insufficiency of the evidence claim dispositive, it did not reach the defendant’s twelve other assignment of errors. Nevertheless, it took the unusual step of addressing numerous other errors made by the trial court. The Court of Appeals stated that “charges in this case should have never been filed. The city was, or should have been aware, that Kuhlman, at the request of arresting officer Haggerty, did submit a urine specimen during treatment . . . and the city knew, or should have known, that Haggerty was advised in the emergency department that the specimen did not show the presence of alcohol or any drug . . . (f)urther, the evidence that Haggerty instructed a nurse to ‘pour out’ the urine specimen is appalling and could be construed as tampering with evidence.” The Court of Appeals also noted that the trial court misapplied the rules of criminal procedure in precluding testimony by defendant’s expert witness, refused to allow the defendant to make an offer of proof as to the expert’s testimony, and provided erroneous jury instructions as to the law on operating a vehicle under the influence. The Court of Appeals concluded by stating that “review of the record reflects that the trial court sought to expeditiously obtain a verdict at the expense of providing counsel with sufficient opportunity to review the instructions prior to submitting them to the jury, and it failed to review the instructions proposed by either side.”

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