Pat Carroll

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Traffic Signals — March 2024

TRAFFIC SIGNALS NEWSLETTER

Dear Colleagues,April 8, 2024

There is the March, 2024 monthly newsletter setting out a summary of Ohio court decisions issued in March concerning impaired driving, alcohol and drugs of abuse, and other procedural related issues that may be raised in these cases. Although not all of the cases involve impaired driving, they raise pretrial and post judgment issues that would apply to OVI cases.

There is also a section for upcoming education opportunities. As part of my role as the Ohio Judicial Outreach Liaison with the American Bar Association, I want to provide current case law and other information to you. As a judge for thirty two years, I understand the time constraints and difficulty with keeping up with recent court decisions.

I am grateful to Paul Pfeifer, Trina Bennington, and the Ohio Judicial Conference staff for assistance in the distribution of the newsletter. Please feel free to call or email me with any feedback.

Patrick Carroll, retired judge

Ohio Judicial Outreach Liaison to the ABA

Carrolljol26@gmail.com

(216) 403-5521

  1. Summary of cases, March, 2024.

Probable cause for the stop

State v. Harrell, 2d. Dist. Clark, No. 2022-CA-50, 2024-Ohio-981. Order overruling motion to suppress from traffic stop was reversed. The defendant was stopped in his car by the police after the defendant left his house and right before a search warrant was executed. There were no traffic infractions or any other violations that occurred prior to the stop and the detention was solely based on the fact that other officers were executing a search warrant. The only justification for the detention was to ensure the safety and efficacy of the search. The authority to detain incident to the execution of a search warrant must be limited to the immediate vicinity of the premises to be searched. Bailey v. United States, 568 U.S. 186, 199 (2103).

In the present case there was no evidence that the defendant was aware of the execution of the search warrant, that the officer had either a reasonable articulable suspicion or probable cause to believe the defendant was engaged in criminal activity, or that the defendant had a weapon or other officer safety concerns. As such, the court held the traffic stop was not valid.

Sylvania v. Ferri, 6th. Dist. Lucas, No. L-22-1130, 2024-Ohio-****. Denial of motion to suppress and OVI conviction were affirmed. The defendant was pulled over after been clocked at 125 mph in I-475. Due to the number of people in the defendant’s car and for officer safety, the defendant was required to get out of the car by the officer. The officer detected a strong odor of alcohol from the defendant’s breath and after field sobriety tests, the defendant was cited for OVI, reckless operation, speeding and red light violations.

The defendant did not dispute the stop, but asserted that the officer lacked probable cause to order the defendant out of the vehicle. In affirming the order overruling the motion to suppress, the appellate court noted the difference between an investigatory stop based on separate probable cause and a traffic stop in which the order to step out of the car is permitted for officer safety, relying on State v. Lozada, 92 Ohio St.3d 74, 2001-Ohio-149.

United States v. Marsh, No. 22-5746, U.S. App. LEXIS 5860 (6th. Cir. 2024). Order overruling motion to suppress and robbery and firearms convictions affirmed. The defendant was a passenger in a car that was stopped making an improper left hand turn into the outside right (curb) lane of a two lane road instead of turning the lane closest to the center of the road. The officers had been following the defendant’s car which matched the description of a car involved in a robbery. Firearms found in the car were identified s those used in the robbery.

Under the Tennessee state code a driver was not required to make the left hand turn into the center lane. The court found the officer’s reasonable, but mistaken belief of the traffic law was sufficient probable cause for the stop.

The court cited Heien v. North Carolina, 574 U.S. 54, 6061 (2014) that an officer who executes a traffic stop based upon an objectively reasonable mistake of law does not violate the Fourth Amendment. The court found that the officer’s belief was not objectively unreasonable when that interpretation was consistent with an appellate court case. The court in Marsh reviewed several state appellate court decisions interpreting similar traffic laws with different conclusions. The split of state court interpretations also supported the objectively reasonable conclusion by the officer that he witnessed a traffic offense.

Author’s Note. R.C. 4511.36(A)(2) is the similarly worded Ohio Statute. In State v. Stadelman, 1st. Dist. Hamilton, No. C-130138, 2013-Ohio-5035, the court found in 2-1 decision that the ambiguity of the statute supported the officer’s reasonable objective belief that the defendant committed a traffic offense when making a left hand turn into the curb lane of a two lane road.

State v. Braucher, 5th. Dist. Stark, No. 2023 CA 00038, 2024-Ohio-811. Order overruling motion to suppress was affirmed. The defendant was stopped for a loud muffler and crossing the stop bar at a red light. The driver’s side car door was opened because the window did not work. When he approached the car, the officer saw a shell casing on the car floor and multiple torches which the officer testified were known to be used to ingest narcotics, especially methamphetamine. Backup was called and a K9 dog did a drug sniff. Drugs, paraphernalia, and a handgun were found in the glove compartment.

Basis for stop.

The court found that more than half of the defendant’s vehicle was over the stop bar at a red light. The court declined to adopt a “bright line test” of the distance necessary at the stop bar to become a traffic offense. The court found in this case there was a clear violation for a valid basis to stop the defendant’s car. Although the defendant claimed it was pretextual stop, the court noted that the officer’s motive is not relevant when there is a valid traffic offense.

In this case the officer mistakenly cited the defendant with R.C. 4511.43(A) [stop bar violation at a stop sign] instead of a violation under R.C. 4511.13(C)) [stop bar violation at a traffic light]. The appellate court noted the same language and same conduct applied to both offenses. The issue was what the officer saw, not what the citation stated. In addition, both were minor misdemeanors and the trial court properly allowed amendment to the stop bar offense with no prejudice to the defendant.

Duration of the stop.

The court found the twelve to fourteen minute delay was not unreasonable. Some additional delay is permissible when “additional facts are encountered that give rise to a reasonable, articulable suspicion of criminal activity beyond that which prompted the initial stop.” (Par. 37, citations omitted.). In this case the court found the defendant/driver’s lack of identification, the shell casing, incorrect license plate, and torches typically used for drugs found on the front seat floor justified further investigation.

Off duty officer

State v. Netter, 4th. Dist. Pickaway, No. 23CA4, 2024-Ohio-1068. Drug conviction and order overruling motion to suppress based on obstructed and expired license tag were affirmed on appeal. Off duty officer was driving home after shift in marked police car when he noticed the license tag. When the officer approached the driver’s door, he could smell raw marijuana, but it was not coming from the defendant/driver. Having passed the k-9 unit three miles away, the officer called for a drug dog sniff. Cocaine and marijuana were found in the car.

The defendant challenged the trial court’s order overruling the motion to suppress on four separate grounds.

  1. Authority of off duty police officer to make a traffic stop.

The appellate court cited case law that an off duty police officer is always on duty, even for other purposes. Although an off duty police officer in an unmarked car does not have the authority to initiate an investigatory stop, the officer in this case was driving a marked police vehicle. (Par. 13. Citations omitted.)

  1. Validity of stop for “low-level non-moving traffic infraction.”

The court noted that R.C. 4503.21 prohibits and obstructed license plate and R.C. 4503.11 required a valid tag on the license plate. A violation of these statute gave the officer sufficient basis to stop the vehicle for a traffic violation.

  1. Duration of stop.

The defendant asserted the officer improperly expanded the scope of the stop when he conducted a canine walk-around. The court noted that a drug detection canine does not constitute a "search" and an officer is not required, before a canine sniff, to establish probable cause or a reasonable suspicion that drugs are concealed in the vehicle. (Par. 17). Citing Rodriguez v. United States, 575 U.S. 348 (2015), absent reasonable suspicion an officer may not extend an otherwise-completed traffic stop to conduct a canine sniff. The court stated the issue is not whether a canine sniff occurs before or after an officer issues, or could have issued, a traffic citation, but whether the canine sniff extends the stop. (Par. 18).

A driver may be detained for a reasonable period of time for the officer to check the driver’s license, vehicle registration, insurance and other information related to the traffic stop. Further detention must be supported by reasonable suspicion of other criminal conduct. The lawfulness of the initial traffic stop will not support a 'fishing expedition' for evidence of another crime. The court noted that Ohio has not established a “bright line” of the proper length of duration, but will depend on the facts of each case to determine reasonableness. The court set out numerous examples of traffic stops with reasonable duration times for a drug dog sniff. (Par. 24-25). In the present case the officer was still verifying the defendant’s information when the dog arrived and therefore, concluded the stop was not unreasonably prolonged.

  1. Validity of canine walk around the vehicle as probable cause to search the vehicle.

The defendant asserted that canine detection of residual marijuana odor from prior use by the driver and the passenger was not grounds to search the vehicle. The defendant also challenged the validity of the dog sniff because marijuana and hemp, a legal substance have the same or similar odors. The court found that "evidence of a dog's satisfactory performance in a certification or training program can itself provide sufficient reason to trust his alert." Florida v. Harris, 568 U.S. 237, 246 (2013). A defendant may challenge the dog’s reliability by cross-examining the testifying officer or by introducing his own fact or expert witnesses.

Author’s note: Hemp is legal in Ohio through cultivation and licensing procedures under R.C. Chap. 928, effective 7/30/2019. The licensing procedures were amended effective 12/29/2023 (S.B.131)regarding licensing eligibility. There is currently pending legislation regarding additional restrictions on possession and use of hemp as part of legislative amendments to R.C. Chap. 3870, Adult cannabis/recreational marijuana. See, e.g. H.B. 86 (passed by Ohio Senate 12/5/2023) and H.B. 354.

State v. Brock, 4th. Dist. Ross, Nos. 22CA38 & 22CA39, 2024-Ohio-1036. Convictions for OVI, fictitious plates, failure to comply, and drug paraphernalia were affirmed. The defendant’s erratic driving, including going off the road another lane of traffic, prompted another motorist to call the police. In response to the call, the officer saw the described car and also saw the car go over the center line. When the officer activated his overhead lights, the defendant continued to drive. The officer then activated the siren, but the defendant continued to drive about eight blocks before turning the corner and getting out of the car. The defendant appeared to be hiding something and told the officer he had snorted a pill, later identified as Percocet. The defendant did not have a valid driver’s license and the license plate was registered to a different car.

The defendant’s pupils were constricted and his speech was slow and slurred. The defendant was arrested for OVI and other offenses. The defendant refused all field sobriety tests and chemical tests. A subsequent inventory included a straw in the driver’s side door with white residue along with a glass pipe with burn marks and residue. The defendant was subsequently found guilty of OVI and other offenses in a jury trial.

Fictitious plate conviction

The court found R.C. 4549.08, which does not contain a culpable mental state, was a strict liability offense. The court noted that R.C. 2901.21(B) provides if a culpable mental state is not provided in a statutory offense and plainly indicates a purpose to impose strict liability, then a culpable mental state is not required. When the statutory offenses do not state a culpable mental state and a purpose to impose strict liability, then the culpable mental state is recklessness.

The court found that traffic offenses, enacted for the purpose of promoting the safety, health or well-being of the public, are generally strict liability offenses. (Par. 22. Citations omitted.). The defendant’s assertion he was not aware the license plate was registered to a different car was not a defense and the fictitious license plate conviction was affirmed.

OVI conviction

The defendant asserted insufficient evidence to support the conviction. The court noted that an OVI conviction does not require evidence of a specific blood, breath, or urine alcohol concentration to prove impairment, but instead, is based on the defendant’s conduct while driving the car. (Par. 37.) In this case the court found that the evidence of the defendant’s erratic driving, disheveled clothing, slow and slurred speech, unsteadiness when he got out of the car, and constricted pupils, along with an admission of snorting a Percocet, was sufficient evidence to support the OVI conviction. The defendant’s statement "I did one perc but one perc ain't going to do **sh*t to me." was not sufficient to find the verdict was against the manifest weight of the evidence in light of all the evidence presented.

Failure to comply conviction.

The defendant asserted that he did not attempt to flee or evade the police, driving at 10 miles per hour in a 25 miles per hour zone before he stopped. The court cited cases affirming failure to comply convictions involving a low-speed chase. (Par. 20-21. Citations omitted.). The failure to stop when the officer activated the siren and lights constituted a violation of R.C. 2921.331(B). The defendant’s behavior may be reasonably understood as an attempt to evade law enforcement by continuing to travel  seven or eight blocks before stopping his vehicle after the officer activated the lights and siren.

Driving without a license conviction.

The defendant was found guilty of driving without a license by the court as part of the jury trial. R.C. 4510.12 (C), driving without a license, is an unclassified misdemeanor when the driver never had a license and a minor misdemeanor when the license had expired. The defendant argued on appeal that there was no proof he never had a license and only the minor misdemeanor would apply. The court found that the officer’s testimony that the defendant “did not have a valid license through the State of Ohio nor any other state” was sufficient to support the unclassified misdemeanor finding of guilt. (Par. 54.) Although the appellate court noted that non-certified copies of LEADS or BMV records could be submitted as prima facie evidence of a defendant’s driving record under R.C. 4510.12(B), these records were not in the record in this case.

Field sobriety test

State v. Hughes, 1st. Dist. Hamilton, No. C-230239, 2024-Ohio-934. Conviction for having a weapon while intoxicated was affirmed. R.C. 2923.15 prohibits a person from possession a firearm while under the influence of alcohol or any drug of abuse. Using the same terminology, the court upheld standardized OVI field sobriety tests to determine if the defendant was under the influence of either alcohol or drugs at the time.

Low breath tests

State v. Reich, 9th. Dist. Medina, No. 2-23-CA-0032-M, 2024-Ohio-1197. OVI conviction affirmed. Admission at trial of the defendant’s breath test result, which was under the legal limit, was not permitted for a prosecution under R.C. 4511.(A)(1)(a) (Impaired driving) without expert testimony. An OVI offense under R.C. 4511.19(A)(1)(a)  focuses on the conduct of the defendant and observations of the arresting officers, rather than the results of a breathalyzer test. (Par. 9, citation omitted). Expert testimony was required to explain breath test result and how it relates to a defendant’s impairment. (Par. 11).

Vehicular assault

State v. Fork, __Ohio St.3d __, 2024-Ohio-1016. Conviction for aggravated vehicular assault was revered due to exclusion of utility vehicle under the statutory definition of “motor vehicle.” R.C 4501.01. The defendant was driving guests in his Polaris utility vehicle on his farm when it veered of a dirt trail and flipped, causing serious injuries to the passenger. The defendant’s blood/alcohol level was 0.178. The issue was the character of the Polaris utility vehicle.

There are two statutory definitions of motor vehicle: R.C. 4501.01(B) and R.C. 4511.01(B). Although there is considerable overlap between the two, a utility vehicle is excluded in R.C. 4501.01(VV).

The introductory language in R.C. Chapter 4501.01, Motor Vehicles Definitions, states, “As used in this chapter and Chapters 4503, 4505, 4507, 4509, 4510, 4511, 4513, 4515, and 4517 of the Revised Code, and in the penal laws unless otherwise provided:” Based on this language, the Court held that the aggravated vehicular assault was a penal offence under R.C. 2903.08 and R.C. 4501.01 definition applied. The R.C. 4511.01 definitions are confined to R.C. Chap. 4511 and R.C. 4513 chapter offenses. The Polaris met the statutory exception as a utility vehicle.

Regarding the classification of the Polaris as a utility vehicle, the Court held that it was based on the vehicle’s principal purpose, not how it was used. The Court found, based on the testimony at trial, that the Polaris was used for farm related activities. Although the Polaris was used for other purposes on the night of the collision, The record did not contain any evidence that the Polaris’s principal use din not fit the qualifying language of R.C. 4501.01(VV).

Author’s note: Although Fork limited the application of R.C. 4511.01 definitions to R.C. 4511 and R.C. 4513 violation, in State v. Wilson, 170 Ohio St.3d 12, 2022-Ohio-3202, the Court applied the statutory definition of “operation” under R.C. 4511.01(HHH) to driving under a suspended license under R.C. Chapter 4510.

A “drug of abuse” also has different statutory definitions based on the offense.

A) R.C. 2925.01(B) and R.C. 3719.011(A). Applies to drug and other criminal offenses.

B) R.C. 4506.081M). Applies to OVI offenses and includes over-the-counter medication taken in quantities exceeding the recommended dosage.

State v. Balmert, 9th. Dist. Lorain, No. 22CA)0011908, 2024-Ohio-1207, affirming conviction for drug related OVI and aggravated vehicular assault. The defendant struck a highway patrol officer while the officer was directing traffic during daylight hours and dry weather conditions. The defendant was found guilty after a bench trial. The defendant argued on appeal that although he had a prohibited marijuana metabolite levels in his urine, the OVI was not the proximate cause of the collision. In rejecting this argument, the court compared two cases, State v. Moore, 6th. Dist. Wood, No. WD-18-030, 2019-Ohio-3705 and State v. Massucci, 6th. Dist. Lucas, No. G-4801-CL-201901302-000, 2021-Ohio-88. The conviction in Moore was reversed on the grounds that the evidence did not show the defendant's act of driving with a prohibited concentration of cocaine in her blood was the direct cause of the death, and without which, his death would not have occurred. In Massacci, however, there was evidence of traffic violations and erratic driving, and the defendant’s behavior at the scene as evidence of the defendant’s driving with a prohibited concentration of marijuana metabolite in his blood was the direct cause of the victim’s death.

In the present case the court found evidence supporting both impairment and causation. The evidence included the results of field sobriety tests, advance roadside impaired driver evaluation (ARIDE), evidence of recent marijuana use, and reconstruction evidence showing the defendant began braking less that a second before impact. There was also evidence that recently consumed marijuana will impair the ability of a person's time and depth perception or time and space perception, and lack of concentration. (Par. 13.) The court found sufficient evidence to show the defendant was impaired which in turn was the proximate cause of the collision.

This case was reversed on the grounds that aggravated vehicular assault under R.C. 2903.08(A)(1)(a) was not an offense of violence for purposes of imposing mandatory post-release control. The reversal was limited only to this sentencing issue.

State v. Cabrera, 3rd. Dist. Logan, No. 8-23-12, 2024-Ohio-****. Convictions for vehicular manslaughter and failure to yield the right of way were affirmed. The defendant was driving a semi-truck westbound when it collided with the decedent travelling northbound. At the intersection there was a stop sign for the defendant and a sign stating, “Cross traffic does not stop.” The decedent had a flashing yellow light. The truck pulled into the intersection where is collided with the front of the decedent’s car. The decedent was travelling at sixty miles an hour with a posted speed limit of 55. The defendant was travelling about 40 miles per hour at the time of the collision.

R.C. 2903.06(A)(4) , aggravated vehicular homicide, requires proof of a minor misdemeanor predicate offense. In this case the defendant was charged with failure to yield the right of way in violation of R.C. 4511.43. The defendant asserted he had made a full stop in compliance with R.C. 4511.43(A). Although the appellate court noted that it is contrary to common sense and logic that a truck could accelerate from a dead stop to forty miles an hour within a few feet, R.C. 4511.43 also required the defendant to yield the right of way to the other car before proceeding into the intersection. (Par. 22, 27.)

The defendant asserted that the decedent forfeited the right of way by driving in an unlawful manner by speeding. The court noted the issue was not whether the decedent was exceeding the posted speed limit, but whether the decedent was operating her car in a reasonable manner. (Par. 21.) Relying on In re O’Neill, 3d. Dist. Logan, Nos. 8-04-08 & 8-04-09, 2005-Ohio-1696."evidence of speed in excess of a posted speed limit alone is not conclusive that a vehicle is proceeding unlawfully and has forfeited its right of way." (Par. 21, emphasis in the original.) The officer testified that he would not cite a driver for going five miles over the speed limit. The evidence presented was sufficient to show the decedent’s speed was reasonable given the surrounding conditions. (Par. 21, citations omitted.). Moreover, the excess speed would not excuse a driver from deliberately driving into imminent danger of a collision. (Par. 21.)

One incident, Two courts, and separate convictions

United States v. Triplett, Case No. 3:32-CR-511, 2024 U.S. Dist. LEXIS 49876 (N.D. Ohio 2024). Motion to suppress traffic stop was overruled on grounds of collateral estoppel based on prior ruling on the defendant’s a motion to suppress on the same grounds decided in state court. The defendant had been stopped for changing lanes too close to another vehicle and driving with an expired license tag. From the stop the officer discovered the defendant had an outstanding warrant. After the defendant was placed under arrest, marijuana and cocaine were found in the car.

The defendant was indicted on state drug charges and filed a motion to suppress the evidence found as a result of a traffic stop. The motion to suppress was overruled and affirmed on appeal. State v. Triplett, 5th. Dist. Delaware, No. 2022-Ohio-1371.

While the state charges were pending the defendant was also indicted by a federal grand jury for drug charges arising out of the same incident. The federal charges were later dismissed but reindicted. The defendant raised the same issues in a motion to suppress in the federal court. Although the state of Ohio and federal government are two separate sovereigns, an exception to the mutuality of parties requirement exists when it is “shown that the party defendant clearly had his day in court on the specific issue brought into litigation within the later proceeding." Goodson v. McDonough Power Equip., 2 Ohio St. 3d 193 (1983). Applying the doctrine of estoppel and full faith and credit, 28 U.S.C. 1738, the court found the defendant could not re-litigate the same factual and legal issues in the federal court.

State v. Dixon, 6th. Dist. Lucas, No. C-L-23-1071, 2024-Ohio-1077. Conviction for attempted vehicular assault affirmed. This case involves a single car collision with a tree in which his passenger was severely injured. After the defendant entered a no contest plea in the municipal court to the charges of speeding (15 miles per hour over the speed limit) and failure to control. On the day of the plea the defendant was indicted for vehicular assault from the same collision.

The defendant argued that the speeding and failure to control offenses were the basis of the reckless element of vehicular assault and therefore, double jeopardy blocked the felony change. The court rejected this position, noting that reckless was an element of vehicular assault charge but not for either the speeding or failure to control charges. In addition, the requirement that a driver operates a vehicle at a reasonable and proper speed (R.C. 4511.21(A)) or reasonable control of the vehicle (R.C. 4511.202(A) is not the same as reckless. Although the defendant may have been reckless in the way he drove the truck, the test for double jeopardy focuses on the elements of the offenses, not the evidence offered in the case. Blockburger v. United States, 284 U.S. 299 (1932).

Sentencing issues.

  1. Fines.

State v. Robinson, 1st. Dist. Hamilton, Nos. C-230394 & C-230395, 2024-Ohio-847. Conviction for leaving the scene of a collision was affirmed. The defendant drove into a parking lot next to two police officers immediately after the collision. Once realizing he was next to the police, the defendant drove away. The court found the police had sufficient time to identify the defendant to support the conviction.

Regarding the fine, the trial court’s judgment entry did not match the fine imposed at the sentencing hearing. The record shows confusion regarding the amount of fines and court costs. Because the record on appeal could not clearly discern the trial court’s intentions, the case was remanded to the trial court for re-sentencing.

State v. Spangler, 3d. Dist. Logan, No. 8-23-02, 2024-Ohio-883. OVI conviction was affirmed. Misinforming the defendant of the maximum OVI fine at the time of the plea was not grounds for reversal. In this case the defendant was informed when the no contest plea was entered that the maximum fine was $2,500, when in fact the potential fine ranged from $1,350 to $10,500. The court imposed a $5,000 fine later at the sentencing hearing. The appellate court distinguished between not informing a defendant of a sentencing component and misstating that component, finding that the trial court's misstatement of the maximum fine did not constitute a complete failure to comply with Crim. R. 11(C)(2)(a). (Par. 13.). There was no evidence in the record that the misstated fine amount would have changed the defendant’s plea.

Regarding the imposition of a fine greater than the statutory minimum, the record shows the trial court considered the defendant’s financial situation and ability to pay when the fine was imposed. Although R.C. 2929.19(B)(5) requires the trial court to consider the defendant’s ability to pay when imposing a fine, a formal hearing is not required. A review of the presentence report containing information on the defendant’s employment, financial status, and other information is sufficient to meet the statutory requirement.

Author’s note: R.C. 2929.28(B) applies the ability to pay requirement for misdemeanor offenses and permits the trial court to conduct a hearing, if necessary. If the record is sufficient, a formal hearing is not required.

  1. License suspension.

State v. Hayes, 8th. Dist. Cuyahoga, No. 111927, 2024-Ohio-845. Conviction for aggravated vehicular assault and other felony offenses affirmed, but reversed for re-sentencing, including imposition of mandatory driver’s license suspension. The trial court informed the defendant at sentencing, but the suspension was not included in the judgment entry.

  1. Incarceration.

State v. Clark, 2d. Dist. Clark, No. 2023-CA-22, 2024-Ohio-751. Absence of jail time credit in sentencing order was reversible error. The defendant in this case was sentenced to eighteen months and six months, imposed consecutively, for two separate fourth degree OVI offenses. Although the trial court informed the defendant at sentencing that he would receive jail time credit, it was not set out in the judgment entry. Ohio Admin Code 5120-2-04 requires a trial court to make a factual finding of the number of prejudgment jail time in a felony case. Only the number of days is required with the length of the sentence after credit to be applied by the ODRC.

Author’s note: R.C. 2949.08 also requires the sentencing court to include the number of jail time credit days in the sentencing judgment entry for both felony and misdemeanor offenses.

State v. Alexander, 2d. Dist. Clark, No. 2023-CA-46, 2024-Ohio-1013. Felonious assault convictions were affirmed. The issue concerns pretrial jail credit when the defendant is already serving a jail sentence for an unrelated conviction. The pretrial jail credit does not begin to accrue until after the prior sentence has ended., citing State v. Cupp, 156 Ohio St.3d 207, 2018-Ohio-5211. As such, the defendant was only entitled to receive pretrial jail credit between the time the prior sentence ended and any time after that date that the defendant remained in jail on the pending case.

State v. Dowdy, 1st. Dist. Hamilton, No. C-230324, 2024-Ohio-1045. Consecutive sentences for misdemeanor offenses affirmed. The defendant received consecutive sentences for assault (2 counts), telecommunications harassment, theft, and attempted aggravated menacing. R.C. 2929.41(B)(1) limits consecutive misdemeanor sentences to eighteen months.

The standard for appellate review of a sentence is abuse of discretion. When a misdemeanor sentence is within the statutory limits, the trial court is presumed to have considered the required factors, absent a showing to the contrary by the defendant. (Par. 6, citations omitted). In the present case the trial court made a record of considering the sentencing factors set out in R.C. 2929.21(A) and R.C. 2929.22(B), including the

  1. nature and circumstances of the offense,

  2. offender's criminal history, and

  3. likelihood that the offender will recidivate.

The trial court also reviewed a presentence-investigation report, a victim-impact statement, and conducted oral arguments on the sentencing factors. Based on the defendant’s violent conduct the court found him to be an ongoing threat to the victim and her family.

  1. Probation.

United States v. Mangum, No. 1:12-CR-364, 2024 U.S. Dist. LEXIS 36816 (N.D. Ohio 2024). State law OVI and identity fraud (for giving false information to officer at OVI stop) convictions were a valid basis to find a violation supervised release conditions. The state law convictions occurred after a warrant was issued, but during the supervised release term. When the defendant was finally arrested, the supervised release term had expired. The court found that although there was no applicable tolling federal statute because the warrant was issued prior to the expiration of supervised release, the OVI and identity fraud convictions could be considered by the court.

Author’s Note: Under Ohio law, when a defendant absconds or leave the jurisdiction, the period of community control ceases to run until the defendant is brought before the court. R.C. 2929.15 (felony) and R.C. 2951.07 (misdemeanor). These statutes, however, are not self-executing and the time the defendant does not comply with the terms of community control does not automatically stop. Instead, additional court action is required by initiating the revocation process. State v. Rue, 164 Ohio St.3d 270, 2020-Ohio-6706.

Smell of marijuana as grounds for further inquiry with traffic stop.

  1. Directly addressed by the court.

State v. Hall, 8th. Dist. Cuyahoga, No. 112865, 2024-Ohio-835. Order overruling motion to suppress was affirmed. Two officers came across the defendant asleep in a car in the park after closing hours. As they approached the car the officers could smell marijuana and looking into the car, saw a suspected marijuana blunt on the front console. Relying on State v. Moore, 63 Ohio St.3d 349 (1992), the court found the smell of marijuana by a person qualified to recognize the odor, is sufficient to establish probable cause to search a motor vehicle. (Par. 8.)

State v. Kelsey, 6th. Cir. Lucas, No. L-23-1101, 2024-Ohio-806. Order overruling motion to suppress traffic stop was affirmed. This case involved a traffic stop for no visible license plate. A temporary tag was in the back window of the car, but not visible due to the tinted window. The tag was also expired. The officer smell burnt marijuana from the car and because of the expired tag, told the defendant the car would be towed. The defendant was told the car would be inventoried. The defendant denied marijuana use. The passenger claimed ownership of a visible vape pen. The search of car found multiple cell phones, a large amount of cash, a white rocky substance (later identified as cocaine), pills (later identified at fentanyl), and other drugs.

The defendant asserted that the stop was pretextual. The record shows the defendant had been under investigation by the officer and they knew each other from prior police encounters. Relying on Dayton v. Erickson, 76 Ohio St. 3d 3, 1996-Ohio-431, and upholding the order denying the motion to suppress, the court noted that the issue was whether the officer initiating the stop had reasonable suspicion that a traffic offense occurred, regardless of whether the officer had an ulterior motive and suspicion that there was other criminal activity. (Par. 25, citations omitted.) The obstructed license plate was a violation of R.C. 4503.21(A). The court also noted that the officer does not need to write a citation for the traffic offense for a valid stop.

Duration of stop.

Regarding the duration of the stop, the court found that the officer smelled the marijuana almost immediately when he approached the driver’s side door. The court acknowledge the authority for a seizure in a traffic stop ends when tasks tied to the traffic infraction are, or reasonably should have been, completed and any seizure beyond that time must be supported by "the reasonable suspicion ordinarily demanded to justify detaining an individual. Relying on United States v. Rodríguez, 575 U.S. 348, 354-355 (2015). The court found that the officer was justified in extending the traffic stop due to the smell of marijuana from the car.

  1. Not challenged by the defendant.

State v. Peeples, 6th. Dist. Wood, WD-23-025, 2024-Ohio-993. Conviction for weapons under disability with handgun found in chipotle bag after the defendant was ordered out of the car. The defendant was stopped for speed (101 in 70 mph zone). The officer smelled burnt marijuana as he approached the car and based on the odor, the defendant was ordered out of the car and the car was searched.

State v. Trenton D. Blue, 7th. Dist. Jefferson, 22-JE-0026, 2024-Ohio-826. The defendant was stopped at 12:30 a.m. for driving with only headlight. The officer smelled burnt marijuana as he approached the car and ordered the defendant and the other three passengers out of the car.

Having your day in court

State v. Mishler, 9th. Dist. Medina, No. 22CA0061-M, 2024-Ohio-1085. OVI conviction reversed for lack hearing on motion to suppress. On the last day of the motion deadline the defendant filed a two page motion to suppress the traffic stop and arrest. The motion was overruled for failure to comply with criminal Rule 47 to set out the legal and factual bases with sufficient particularity to place the prosecutor and the court on notice of the issues to be decided. The defendant later filed a motion for leave with an amended, expanded motion to suppress, which was overruled.

Although the court found the jury verdict was supported by the evidence, the case was reversed on the suppression issue. Relying on State v. Codeluppi, 139 Ohio St.3d 165, 2014-Ohio-1574, the appellate court held that criminal rule 47 does not require a party to set out the grounds in excruciating detail, but instead, provide sufficient notice to the state of the issues raised. (Par. 13). The court found the suppression motion contained sufficiently particular language to put the State on notice of the issues intended to be raised.

The dissent in the case asserted that the motion consisted only of a boiler plate list of potential issues that could generically apply to any traffic stop and arrest. The boiler plate list did not contain any factual bases specific to this case.

Shaker Heights v. Jones, 8th. Dist. Cuyahoga, No. 112988, 2024-Ohio-830. Dismissal of untimely Administrative License Suspension (ALS) appeal was affirmed. The defendant filed an appeal of the ALS more than four months after his initial court appearance and three months after receipt of notice of license suspension for refusing to submit to a breath test with his OVI arrest. R.C. 4511.197(A) requires the appeal to be filed within thirty days of the defendant’s initial appearance in court on the OVI charge. The trial court was not required to consider issues raised by an untimely appeal.

State v. Strull, 11th. Dist. Ashtabula, Nos. 2023-A-0044, 2023-A-0047, 2023-A-0048. 2024-Ohio-1118. OVI and traffic control device convictions were reversed on the issues of the defendant’s right to testify. The defendant represented himself with standby counsel for the jury trial. After the defendant indicated he did not want to testify, but only introduce exhibits, he changed his mind based on the lack of foundation for the exhibits. The record was unclear if the defendant had formally rested but was not permitted to reopen the case. The case had not been submitted to the jury.

On appellate court recognized the right to testify in one's defense as a fundamental constitutional right. Although a trial court has discretion to maintain reasonable control over the mode and presentation of evidence, the court also has wide discretion to permit evidence to be offered out of order.  This includes the decision to allow a party to reopen its case to present additional proof. (Par. 31, citations omitted.)

Hills v. Roble, No. 23-1395, 2024 U.S. App. LEXIS 6296 (6th. Cir. 2024). Dismissal of civil action against federal marshal was affirmed due to plaintiff’s failure to comply with discovery orders and appearing for deposition by video while driving a semi-trailer truck. The district court found the plaintiff’s failure to comply with his discovery obligations was willful and in bad faith by refusing to attend depositions without a court order. The court noted that the plaintiff was testifying as a witness is a deposition while driving a large truck, the plaintiff was not only unable to give his full attention to the deposition but also was in violation of state law.

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