No mandatory BAC testing for deadly accidents in Ohio

Jesse Whitaker arrested for multiple charges in Greene County including OVI. (Photo/Fairborn City Jail)

DAYTON, Ohio (WDTN) -We’re digging into a law that some say, just isn’t right. It comes after one of the biggest headlines of the week.

2 NEWS was first to tell you about the arrest of 20 year old Jesse Whitaker.. after he crashed St. Patrick’s Day night.
Beavercreek police did A field sobriety test.. but Whitaker refused a blood and breathalyzer test.
Whitaker was also the driver in an accident that killed three Bellbrook teen girls in 2012.
Back then, he was never given a drug or alcohol test, because Investigators decided there was no probable cause.
and After this latest accident, the family of one of those girls says, the law doesn’t make sense.

Ohio has no law that requires someone in an accident to take an alcohol or drug test. Instead investigators rely on two words. “Probable cause.” 

Janet Carpenter lost her daughter Sophie Kerrigan in a 2012 car accident. Jesse Whitaker was behind the wheel as his truck slammed into a tree.

Three teenage girls died that night. Carpenter was told there was not enough probable cause to get Whitaker to take a drug and alcohol test. A fact that still has her upset and confused.

“What else do you need? Besides a truck wrapped around a tree and three dead girls in the back seat what more do you need?” said Carpenter.

2 NEWS Investigates decided to take a closer look at what exactly the law says about these types of situations. We found they vary state to state.

“There’s no uniformity among the states as to whether to leave it to the discretion of the officer or have a statute that says under x circumstances the officer must test,” said Hagel.

According to Advocates for Highway and Auto Safety, more than half of all the states have some sort of mandatory law that requires drivers who survive fatal crashes to be tested for alcohol.

UD Professor of Law, Thomas Hagel said Ohio is not one of them.
For this state, it’s really up to the officer and probable cause.

“For probable cause, the officer would have to show that a reasonable person looking at the existing facts and circumstances would come to the conclusion that this suspect, if you will, probably, not for sure, but probably has committed a crime,” said Hagel.

Hagel said a prosecutor and judge help put checks and balances to that decision.
But he said it’s a topic that’s been up for discussion at the statehouse before.

“In fact the Ohio Legislature there has been various bills over the years to raise that issue and the issue usually is should we continue to leave it to the discretion of the officers or not give the officer any discretion,” said Hagel.

No changes have been made because it’s a controversial subject. Hagel said there are pros and cons to both. He said while some might say it’s a privileged to drive and the mandatory law could help deter bad behavior, others say it’s stepping over boundaries.

“There are a lot of people who say, hey look, unless there is some reason for the officer to invade my privacy, he shouldn’t be allowed to,” said Hagel.

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