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Defense seeks to suppress evidence in OVI case against fired Struthers cop



Published: Wed, October 31, 2012 @ 12:03 a.m.

By JEANNE STARMACK

starmack@vindy.com

BOARDMAN

The defense attorney for a fired Struthers police officer has asked the judge in the officer’s OVI case to suppress all evidence against him.

Mark Lavelle, attorney for Daniel Lamping, asserted in a hearing Tuesday before Judge Joseph Houser in Mahoning County Court in Boardman that there was no probable cause for Lamping’s arrest.

The hearing included testimony from the officer who arrested Lamping late July 16 on South Avenue in Boardman, Ohio State Highway Patrol Sgt. Brad Bucey, and the video of the arrest from Bucey’s cruiser.

Judge Houser said he will consider the testimony and the video and likely will issue a decision in two weeks.

Lamping was charged with operating a vehicle while impaired after refusing a field sobriety test during the traffic stop, and has pleaded innocent. The city fired him at the end of July. An arbitrator called in by the Ohio Patrolmen’s Benevolent Association is expected to decide by January whether he will get his job back.

Bucey stopped Lamping because he was driving without headlights, and when he approached the car window, he smelled alcohol, court documents indicate.

In Tuesday’s hearing, Lavelle argued that even though Lamping did not have headlights on, he did have on fog lights. Lamping was driving a friend’s car, and the headlights weren’t working, he can be heard telling Bucey in the video.

Lavelle also argued that the odor of alcohol Bucey smelled when he approached the window could have come from Lamping’s passenger.

Bucey approached the car at the passenger-side window. Lavelle said that a “drunk guy” was between Bucey and Lamping while he talked to the men at the car window. Lamping told the trooper he’d had two beers.

Bucey said he had Lamping get out of the car, and when he did, he could still smell alcohol on his breath.

Bucey also said Lamping’s eyes were glassy and bloodshot. Lavelle noted Lamping had been painting earlier in the day. He also asked whether Bucey knew at what point during the day Lamping drank the beers.

Bucey replied that Lamping said he’d been painting, then they had the beers and “were on their way.”

Lavelle asserted that Bucey had Lamping get out of his car based only on being told that he’d had two beers, and there was no reason to suspect impairment at that point.

“So you said to him: ‘Do you want me to determine if you are impaired?,’” Lavelle pointed out. Bucey can be heard on the video asking that question as Lamping refused a field sobriety test.

“You hadn’t made the determination yet,” Lavelle said.

“I go on my 12 years of experience,” Bucey said. “Bloodshot, glassy eyes and the odor, and he refuses the tests, and I make my judgment to place under arrest.”

In the video Bucey says to Lamping: “If you won’t take my test, I have no choice but to arrest you.” Shortly after, Lamping can be heard saying that his uncle is a captain “down at Boardman.” Don Lamping is a captain in the Boardman Police Department.

Lavelle said Lamping had not been read his Miranda rights before he admitted he’d had two beers.

Assistant Prosecutor Martin Hume pointed out Lamping was not under arrest when he made that statement.

Lamping has been driving with unrestricted privileges even though Ohio requires an administrative license suspension through the Bureau of Motor Vehicles that begins immediately upon an OVI charge.

Judge Houser stayed his ALS suspension pending an appeal hearing. The hearing did not take place during Lamping’s arraignment in July. Hume told The Vindicator several weeks ago that he expected the ALS hearing would take place at the same time as the suppression hearing Tuesday, because many of the issues were the same.

He asked Judge Houser Tuesday to have the ALS hearing as well. Lavelle objected, saying he hadn’t been notified the ALS hearing also would take place.

Judge Houser agreed to schedule it at a later date. He said after the hearing that a date likely would be set after his decision on the suppression hearing.

The Vindicator asked Hume why he did not notify Lavelle of his intent to ask for the ALS appeal hearing. He did not comment.


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