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Man Unjustly Accused
     “Joe” was arrested for Operating a Vehicle Impaired, OVI, on September, 21, 2016, at around ten o’clock in the evening.  Joe said he never drinks, never takes illegal drugs and never abuses prescription drugs.
He said he was arrested because he is gay.

Three months later, when the case was set for a hearing on our Motion to Suppress, the prosecutor and the arresting state Trooper, agreed to dismiss the OVI.  Joe subsequently pleaded no-contest to, and was found guilty of, a no-point speeding violation.

​Even though Joe does not abuse drugs he does take prescription medicine.  He takes Clozapine daily, for Post Traumatic Stress Disorder (PTSD), and Tramadol occasionally, to relieve pain from chronic kidney stones.  When the state’s lab results were admitted into discovery, the results indicated that Joe had Tramadol in his urine.  The Clozapine did not show up in the state’s drug test.  Joe had taken Clozapine on the morning he was arrested but said he had not taken Tramadol for several days.

If Joe was correct, the Tramadol should not have been in his system.  In any case, Tramadol can be taken without impairment.  It is recommended that a person should not operate a vehicle when they first begin to take Tramadol so they can assess the side-effects, if any.  Joe had taken Tramadol for years and had never been impaired or had a negative reaction to the drug.

The Trooper reported that he suspected drug use as there was no odor of alcohol.  Joe consented to a “pat down” and the Trooper found no drugs or drug abuse paraphernalia.  Even though the Trooper said he suspected drug abuse, he did not search Joe’s vehicle or investigate further.

Joe had committed a minor traffic violation which was not suggestive of impaired driving,  traveling Sixty-Five Miles Per Hour in a Fifty-Five Miles Per Hour zone.  That is not even a two-point violation.

The Trooper reported that, “As I waiting (sic) to pull the vehicle over in a safe location I observed the vehicle weaving slightly within its lane.”  Weaving within a person’s lane of travel is not a traffic violation.
The Trooper approached Joe’s vehicle and talked to Joe and his partner, “John”, through the open window of Joe’s vehicle.  Joe and John were wearing identical clothing and identical wedding rings.  The Trooper reported that he, “[N]oticed his [Joe’s] eyes were bloodshot and glassy, his speech was slurred and he was lethargic.”  The Trooper reported that, “I did not detect the odor of an alcoholic beverage coming from his person.”  The Trooper reported that he asked if the occupants had consumed alcohol and they replied they had been drinking only coffee.

In addition, the Trooper asked other questions, such as where Joe had been, what he had been doing and where he was headed.  Joe and John answered all of the Trooper’s questions politely and without hesitation or guile.  The Trooper stated in his report that Joe was polite and cooperative.

Joe provided his license and proof of insurance to the Trooper who returned to his cruiser and ran a check on Joe’s driving record through leads.  The Trooper found that Joe’s license was valid and that he had no prior OVIs.  The Trooper then returned to Joe’s vehicle and had him exit the vehicle for suspicion of OVI.

The Trooper alleged that there was probable cause to detain Joe for OVI.  The Trooper said that the probable cause was: (1) speeding, 65 mph in a 55 mph zone; (2) weaving within his own lane; (3) bloodshot and glassy eyes, and; (4) slurred speech, and; (5) lethargic behavior.

The Trooper reported that as Joe, “[W]alked back to my cruiser he stumbled and nearly fell and had to brace himself with the hood of my cruiser.”  However, a recording of that incident showed that Joe stumbled slightly, in the dark, as he stepped from the elevated paved roadway unto the the lower, unpaved, dirt shoulder and lightly placed his hand on the hood of the cruiser for stability.  When he stumbled, Joe was watching the Trooper’s back and not looking down at the ground.

The Trooper had Joe perform three Standardized Field Sobriety Tests (SFST) in an attempt to establish probable cause:  (1) The Horizontal Nystagmus Gaze (HGN); (2) The One Legged Stand, and; (3) The Walk and Turn.  The Trooper said that Joe failed all of three tests miserably.  Unfortunately, all of these tests were performed behind the Trooper’s cruiser where recording was impossible.  There was no way to collaborate any of the Trooper’s observations.

The Trooper handcuffed Joe, put him in the back of the cruiser, and transported him to the local police station.  At the police station the Trooper had Joe provide urine for testing.  Several weeks later, the test results came back that Joe had Tramadol in his system.

Joe had an independent urine test performed at a local hospital as soon as possible after being released on bond.  The independent test came back negative for all drugs.  However, the prosecutor argued that Joe was driving while impaired based upon the aforementioned positive test for Tramadol reported in the state’s drug test.

Ortner Hanek argued that there was not sufficient probable cause to arrest Joe.  We argued that there was not sufficient indicia of impairment to have Joe perform additional testing under the aforementioned circumstances.  Ortner Hanek also argued that the acquisition, transportation and general handling of the urine sample was not done in accordance with protocol.

The prosecutor offered to reduce the OVI to Physical Control or Reckless Operation.  However, there was no lack of physical control or reckless operation.  We refused the state’s offers to plead to a lesser charge even though that would have been an easy way to resolve this case.  Joe stood firm in his innocence and Ortner Hanek stood with him.  Ortner Hanek believed Joe’s side of the events and did not give up until the OVI was dismissed.

We were able to tell Joe’s story.

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