Revised Rules for Tampering With Evidence Charge
You pull someone over for traveling left of center. The driver does not have a valid license. There is a strong smell of alcohol, and you suspect that the driver is under the influence of alcohol. As you start to arrest the driver, you see him toss a knife out of the window.
Can you charge this driver with Tampering with Evidence?
No. On May 29, 2014, the Ohio Supreme Court redefined the charge of Tampering with Evidence. Tampering is still a valid charge. To prove that charge, the State must prove that the defendant altered, destroyed, concealed or removed a record, document or other item with the intent “to impair its value or availability as evidence in such proceeding or investigation.” This requires that the defendant know there is or likely will be a criminal investigation involving the evidence with which he tampered.
The most important factor in considering a Tampering charge is whether the evidence in question was involved in the crime for which the suspect is charged. If the item that is being altered, destroyed or concealed is not related to what the suspect is being investigated for (at that current time), you cannot charge him with Tampering.
Imagine you respond to a call of shots fired. If, when you arrive on the scene, you see someone try to toss a gun, a Tampering charge would be absolutely appropriate. If you see or suspect drug use and the suspect attempts to alter, destroy or conceal those drugs, a Tampering charge is also appropriate.
In the first scenario above, the knife did not relate to driving left of center. The knife did not relate to driving without a valid license, nor did it relate to driving under the influence of alcohol. Therefore, you cannot charge the driver with Tampering with Evidence.
What if, instead of a knife, you saw the driver hide a beer can under his seat? Because the driver had not been maintaining his lane and smelled of alcohol, which led you to suspect him of driving while under the influence of alcohol, it would be reasonable to charge him with Tampering with Evidence if you saw the driver attempt to hide an alcoholic beverage.
Your key consideration when deciding whether to charge an individual with Tampering with Evidence should be whether the item being altered, destroyed, concealed or removed is related to the current investigation. If the evidence tampered with has relevance to the current investigation, then you can add a Tampering charge.
This article is not to be considered legal advice. Please consult your police legal advisor regarding any legal issue.
Sherri Bevan Walsh
Summit County Prosecuting Attorney