Pat Carroll

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Traffic Signals — April 2024

TRAFFIC SIGNALS NEWSLETTER

Dear Colleagues,May 8, 2024

April, 2024 monthly newsletter setting out 1) a summary of Ohio court decisions issued last month concerning impaired driving, alcohol and drugs of abuse, and other procedural related issues that may be raised in these cases and 2) upcoming education opportunities. Although not all of the cases involve impaired driving, they raise pretrial and post judgment issues that would apply to OVI cases.

As a judge for thirty two years, I understand the time constraints and difficulty with keeping up with recent court decisions. As the Ohio Judicial Outreach Liaison with the American Bar Association, I want to provide current case law and other information to you.

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, April, 2024.

Impact of recreational marijuana

State v. Fulcher, 2d. Dist. Greene, No. 2023-CA-31, 2024-Ohio-1609. Conviction for felony marijuana possession was affirmed. The defendant was charged with illegal possession and cultivation of marijuana. The marijuana crop was seen by aerial view from a police helicopter over the defendant’s property. During the jury trial, the defendant entered a no contest plea to the felony possession charge in exchange for dismissal of the cultivation charge.

Application of R.C. Chap. 3780, Adult Cannabis Use/Recreational Marijuana.

The defendant moved to vacate the conviction asserting the R.C. Chap. 3780, the Adult Cannabis Use/Recreational Marijuana Act passed in the November, 2023 election was retroactive and therefore, his conduct on September 2, 2020 was not illegal. Applying R.C. 1.48 and Art. II, Sec 28 of the Ohio Constitution which generally prohibit retroactive laws, the court found that R.C. Chap. 3780 was not retroactive. Putting aside the retroactivity claim, the court noted that R.C. 3780.29(A)(1)(b) requires marijuana grown outside to be “not visible by normal unaided vision from a public space." Due to the ability to spot the defendant’s marijuana plant, the plants were not being grown in compliance with R.C. 3780.29.

Self-representation.

During the pendency of the case and prior to trial, the defendant discharged his attorney and chose to represent himself. The right to represent oneself is not unlimited and the trial court must ensure that a defendant is 'aware of the dangers and disadvantages of self-representation so that he knows what he is doing and his choice is made with eyes open. (Par.  35. Citations omitted.). The trial court conducted a thorough discussion with the defendant about his rights and the issue of self-representation and the defendant signed a waiver of counsel. The court then found the defendant knowingly, intelligently, competently, and voluntarily waived his right to representation and had elected to represent himself. The defendant also declined the trial court’s offer to appoint stand-by counsel.

The right to effective assistance of counsel necessarily presumes that the defendant has counsel, and the law pertaining to effective assistance of counsel does not apply when the defendant exercises his right to self-representation. (Par. 34. Citation Omitted.). Any claim of ineffective assistance of counsel is limited to proceedings prior to withdrawal of counsel. The court found that the defendant’s attorney was not ineffective for not filing a motion to suppress evidence found at the defendant’s home. The officer went no further than the front entrance to the home after being let in by the defendant’s brother, saw no incriminating evidence at that time, and picked up the marijuana plants with the consent of the defendant. The admission by the defendant that he was growing marijuana for medical purposes was voluntarily made when he first encountered the police before the police court inform him of why they were there. As such, the record did not show the likelihood of success if a motion to suppress had been filed.

Author’s Note: Unlike recreational marijuana, R.C. 3780.29, R.C. Chap. 3796 does not permit home grown medical marijuana.

State v. Naylor, 11th. Dist. Portage, Nos. 2023-P-0015 & 2023-P-0021, 2024-Ohio-1648. Convictions for aggravated vehicular homicide, aggravated vehicular assault, and OVI were affirmed but remanded on sentencing issues. This case involved a head-on crash after the defendant crossed the center line. The defendant admitted to drinking three shots of cognac within an hour of the crash with the open cognac bottle in his car. (Par. 18) At the hospital the defendant submitted to a urine test which showed 103.22 nanograms of THC metabolite per milliliter (plus or minus 10.32 nanograms per milliliter), which was over the legal limit of 35 nanograms per milliliter. (Par. 20).

The defendant sought to present expert testimony that the marijuana metabolite level in his urine would not have impaired his driving ability and was relevant to whether the injuries and death were the proximate result of the R.C. 4511.19(A) violation. The court found the proposed opinion testimony that the defendant was not impaired was irrelevant, and the trial court properly excluded it. In arriving at this conclusion, the court held the legislature decided as a matter of policy that anyone driving with the statutory prohibited levels "definitely would be impaired." (Par. 48. Citation omitted.) The court noted that the state's obligation to prove proximate cause did not require it to prove the defendant was actually impaired, but instead, required to prove the defendant’s per se violation of R.C. 4511.19(A)(1)(j)(viii) was a substantial factor in bringing about injuries and death as opposed to another factor being the sole cause.

The defendant also sought to present expert testimony to challenge the reliability of the state's testing method. Relying on State v. Vega, 12 Ohio St.3d 185 (1984), involving the alcohol breathalyzer, a defendant may not make a general attack upon the reliability and validity of the breath testing instrument, since the General Assembly "legislatively resolved the questions of the reliability and relevancy of intoxilyzer tests."  (Par. 59.). Although a defendant may challenge reliability of the state's testing method and the results, these challenges go to the weight, not the admissibility of the evidence. As such the trial court did not abuse its discretion to exclude the expert testimony.

The defendant sought to challenge the constitutionality of driving with prohibited level of marijuana because a reasonable person would not be on notice when the prohibited level was reached. The argument was based in part on the recent legalization of marijuana, R.C. Chap. 3780. The court noted that marijuana use, other than under an inapplicable medical exception, was illegal in Ohio at the time the defendant committed his offenses. Marijuana was and continues to be illegal under federal law. (Par. 82.). Moreover, the purpose of R.C. 4511.19(A) “is not the prohibition of marijuana use, which is addressed in other aspects of the criminal code. The statute implements a bar to impaired driving, regardless of the legality of the substance involved. This is reflected by the fact that the statute does not bar trace levels of metabolite, which would reflect any level of consumption of the illegal substance, but only prohibits metabolites at a level that the legislature deemed dangerous in a driver.” (Par. 84, relying on State v. Topolosky, 10th Dist. Franklin No. 15AP-211, 2015-Ohio-4963.)

The defendant also asserted that R.C. 4511.19(A)(1)(j)(viii) violates substantive due process because it is not rationally related to a legitimate governmental interest and because marijuana metabolite cannot be correlated with impairment, a per se violation is arbitrary and bears no rational relationship to preventing impaired driving. In rejecting this argument, the appellate court noted the state has a legitimate interest in highway safety and keeping impaired drivers off the road. (Par. 89. relying on State v, Whalen, 1st. Dist. Hamilton, No. C-120449, 2013-Ohio-1861.) Moreover, as driving is a privilege, “the General Assembly acted well within its police powers in criminalizing driving with a prohibited amount of marihuana or marihuana metabolite in a person's blood or urine."(Par. 89. Citations omitted.).

Author’s Note: The decision in Naylor differs from the decision in State v. Balmert, 9th. Dist. Lorain, No. 22CA 0011908, 2024-Ohio-1207 (Set out in March, 2024 newsletter) on the issue of proximate cause and actual impairment for the underlying R.C. 4511.19 violation.

Probable cause “Dubious travel plans”

State v. Dunbar, 4th. Dist. Gallia, No. 22CA14, 2024-Ohio-1460. Conviction for cocaine trafficking was affirmed. The defendant was stopped along with two passengers for driving at night with no headlights, taillights, and license plate light on U.S. 35. The defendant was driving a rental car from Chicago. In response to the officer’s question, the defendant stated he was going to Beckley, West Virginia to stay with his cousins for a few days. The officer grew suspicious because the rental agreement showed the car was picked up the day before in Chicago and was due back in Chicago the next day. The officer testified the defendant was driving on a known drug corridor and Chicago is a "huge hub" for drugs with ($1,000 worth of cocaine in Chicago is worth $3,000 in Huntington. (Par.6). Also, the defendant/driver did not know the name of the front seat passenger. Based on the defendant’s conduct and dubious travel plans, the officer called for a drug dog. The officer who came a few minutes later approached the defendant’s car and one of the passengers got out with a baggie of what later was tested as heroin sticking out of his pants.

The court found that the traffic infractions were a valid basis for the stop. Regarding the duration of the stop, ordinary inquiries incident to a traffic stop includes "checking the driver's license, determining whether there are outstanding warrants against the driver, and inspecting the automobile's registration and proof of insurance."  Rodriguez v. United States, 575 U.S. 348, 349 (2015). (Par. 27). The officer testified that a traffic stop usually takes about thirteen minutes and he decided to call for the drug dog before that time while he was still waiting for a response to the criminal history record check.

Once an officer lawfully stops a driver, the officer may order the driver to exit the vehicle without additional justification or suspicion of a criminal violation. (Par. 28. Citations omitted.). A traffic stop becomes "'unlawful if it is prolonged beyond the time reasonably required to complete the mission' of issuing a ticket for the violation." Rodriguez, 575 U.S. at 350. After the reasonable time for issuing a citation has elapsed, an officer must have a reasonable articulable suspicion of illegal activity to continue the detention. (Par. 28. Citations omitted.). Generally, questions about travel plans are ordinary inquiries incident to a traffic stop, including the occupants' destination, route, and purpose. (Par. 33. Citations omitted.) The court noted that dubious travel plans, rented vehicle, and travel to and from source cities was sufficient to support a reasonable suspicion of criminal activity. (Par. 35. Citations omitted.). The court found the stop and subsequent investigation did not violate the Fourth Amendment.

United States v. Jordan, No. 23-3334/3337, 2024 U.S.App. LEXIS 10604 (6th. Cir. 2024). The defendant’s car was stopped for speeding in a rental car on I-71 in Ashland on her way to Erie Pennsylvania. The rental agreement showed the car was picked up the day before in Florida and due to be returned the next day in Florida. The court found there was reasonable suspicion to extend the traffic stop. The court noted that the defendant and the driver drove cross country overnight and their travel plans did not make sense. In addition, the defendant/ passenger showed heavy breathing and appeared nervous. Although nervousness alone is a weak basis for suspicion it can contribute to reasonable suspicion in combination with other factors, such as questionable rental-car arrangements.

Dubious travel plans are a weighty factor in establishing reasonable suspicion to extend a traffic stop. (Citations omitted.). In this case the defendant and the driver were driving away from where the rental car was due the next day after driving through the night. The court further noted that the behavior fit a drug-courier profile including rental cars to avoid airports with long haul trips driving straight thru the night, limiting transit downtime. In affirming the denial of the motion to suppress, the court stated that a reasonable-suspicion inquiry is a totality-of-the-circumstances analysis, and the outcome often hinges on case-specific factual nuances of the case. Reasonable suspicion can arise from innocent behavior and police need not rule out innocent explanations to be reasonably suspicious of a defendant. United States v. Arvizu, 534 U.S. 266, 274,277 (2002).

Special police authority

State v. Thomas, 8th. Dist. Cuyahoga, No. 112624, 2024-Ohio-1361. Order granting a motion to suppress was affirmed. The issue raised was the authority of the Greater Cleveland Regional Transit Authority (GCRTA) police officers to effectuate a traffic stop on a public road for a minor misdemeanor traffic violation. The defendant was initially stopped for making an improper left hand turn into a “bus only” lane. The officer approached the defendant’s vehicle at a red light at another intersection. When the traffic light changed, the defendant said, “Guess what, gotta go” and left the scene. The GCRTA officers followed the defendant for about forty blocks and eventually stopped the pursuit. A few weeks later, a Cleveland police officer noticed the defendant’s parked van and initiated a vehicle tow procedure. The defendant was arrested for fleeing and eluding from the earlier incident as well as two count of child endangerment. The defendant was not charged with the original traffic violation.

Authority of special police.

R.C. 306.35(Y) provides in pertinent part that GTRTA officers have “the power and duty to act as peace officers within transit facilities owned, operated, or leased by the transit authority to protect the transit authority’s property and the person and property of passengers . . .”

The court found that a bus lane on a city street was not within the transit authority. The court further found that the definition of “transit facility” did not include the entirety of any street where the transit authority operates a bus line. (Par. 22) and absent an agreement with the host city, the statute did not give the police full police powers throughout the entirety of the county (Par. 17.)

Although R.C. 306.35(Y) further provides “enforce all laws of the state and ordinances and regulations of political subdivisions in which the transit authority operates.” The appellate court construed this language to be limited to offenses within transit facilities and not applying to any street where the transit authority operates. While the statute also provides that the transit authority’s police power may be broadened by an agreement with any municipality, there was no agreement in this case. The court also noted other statutorily created specialty police departments that had limited authority. (Par. 26).

Suppression as remedy.

The court found that the lack of police authority was a statutory violation which did not give rise to suppression under the 4th. Amendment of the U.S. Constitution. Relying on State v. Brown, 143 Ohio St.3d 444, 2015-Ohio-2438, however, the court noted that a traffic stop for a minor misdemeanor made outside a police officer's statutory jurisdiction or authority violates the guarantee against unreasonable searches and seizures established by Article I, Section 14 of the Ohio Constitution. (Par. 31). Applying the decision in Brown, the court found the government's interests in permitting an officer without statutory jurisdiction or authority to make a traffic stop for a minor misdemeanor offense is minimal and is outweighed by the intrusion upon the individual's liberty and privacy that necessarily arises out of the stop. Based on the Ohio Constitution, the suppression order was upheld.

Make a record!

  1. Suppression findings.

State v. Jeter, 6th. Dist. Erie, No. E-23-034, 2024-Ohio-1442. Suppression order reversed due to lack of findings by the trial court. The defendant was stopped on the highway for following the car in front too closely. A second officer arrived at the scene with a drug dog who indicated drug presence in the defendant’s car. The defendant was charged with possession and trafficking cocaine. In his motion to suppress the defendant raised numerous issues, including probable cause for the stop, unreasonable delay after the traffic stop, reasonable suspicion of drug activity, and the validity of a warrantless search of the vehicle. After an evidentiary hearing and supplemental briefs, the trial court granted the motion to suppress without any explanation.

Due to the lack of findings by the trial court, the appellate court had no reasonable basis for review and could not speculate the basis of the suppression order. The case was remanded for the trial court to make findings of fact and conclusions of law based on the evidence adduced at the suppression hearing whether the drugs seized were the result of an unlawful search. The appellate court noted Criminal Rule12(F) provides that when factual issues are involved in determining a motion to suppress, the trial court shall state its essential findings on the record.

Author’s Note: Findings of fact in a suppression hearing need not be reduced to writing. Oral findings on the record from the bench after hearing on motion to suppress that sets out the reasons for the court’s decision complies with Criminal Rule 12(F). State v. Pierce, 5th. Dist. Richland No. 10 CA 52, 2011-Ohio-2361.

  1. Speedy trial

Euclid v. Amiott, 8th. Dist. Cuyahoga, No. 112675, 2024-Ohio-1583. Assault conviction vacated for lack of speedy trial. Although there was no express waiver of speedy trial by the defendant, the time to bring the case for trial was tolled for a period of time due to discovery requests and pretrial motions. There was also a tolling of time due to the recusal of the assigned judge and the assignment of a visiting judge. Although not specifically set out as a statutory tolling, the absence of any judge to preside over the matter must necessarily toll the time and falls under R.C. 2945.72(H) for any reasonable continuance. (Par. 14. citations omitted.). Once the visiting judge was assigned, however, the speedy trial time began to run. (Par. 15.)

The trial was rescheduled a number of times, some with consent of the parties and once by notice from the clerk of court without a journal entry. When the court continues a trial on its own motion, the trial court must enter the order of continuance and the reasons therefore by journal entry prior to the expiration of the required time limits for bringing a defendant to trial. (Par. 21. Citations omitted.). Once the statutory time limit to bring a defendant to trial has expired, the defendant has established a prima facie case for dismissal. At that point the state has the burden of production to produce evidence demonstrating the time limits were extended by operation of R.C. 2945.72. (Par. 11. Citations omitted.).

In the present case although there was an assertion by the prosecutor that the trial had been continued and a new date selected by agreement of parties. The clerk’s notice, with no accompanying journal entry, did not reflect consent by the defendant. As such, the four and one half month continuance did not toll the speedy trial time, resulting in dismissal of the case.

Author’s note: When a case is continued by the court’s own motion, R.C. 2945.72(H) permits a reasonable continuance, which tolls the speedy trial time. The continuance must be

Recusal and assignment of a visiting judge creates a limited extension, but upon assignment of the visiting judge, the docket should be checked to determine if there are any time constraints due to speedy trial issues.

Probable cause – Non traffic stop in car.

Parma v. Perotti, 8th. Dist. Cuyahoga, No. 112089, 2024-Ohio-1359. Overruling the defendant’s motion to reopen appellate judgment affirming OVI conviction. The court found that the arresting officer’s testimony of what was relayed to him from a woman who found the defendant late at night sitting on her front porch was not unduly prejudicial. The court further found that the officer’s testimony related to the officer’s thought process during the investigation of what he was told and what he directly observed was relevant, equivocal, and contemporaneous.

Author’s note. In the prior appeal, Parma v. Perotti, 8th. Dist. Cuyahoga, No. 112089, 2023-Ohio-3472, the court affirmed the OVI conviction and the order overruling the motion to suppress. After the defendant left the front porch, he sat in his parked car in front of the woman’s home. She called the police and when the officer arrived, the defendant drove off. The officer testified he did not see any erratic driving or traffic violation, but stopped the defendant based on the woman’s report. The defendant was initially handcuffed and put in the back of the patrol car for officer’s safety. As the officer smelled the odor of an alcohol beverage and saw the defendant’s red, glassy eyes, the handcuffs were removed and the defendant was taken from the car to perform field sobriety tests. Based on the results of the tests, the defendant was placed under arrest for OVI.

The appellate court found that the defendant was stopped in response to the 911 call, not for a traffic matter. The subsequent observations by the officer after the stop supported the officer’s actions to conduct field sobriety tests. From the totality of the circumstances, including the field sobriety tests results and the officer’s observations of the defendant, the court found there were valid grounds to arrest the defendant for OVI, relying on State v. Farey, 5th. Stark, Dist. No. 2017CA00137 2018-Ohio-1466, finding it was not necessary for officer to observe poor driving performance in order to place appellant under arrest for driving under the influence "when all the facts and circumstances lead to the conclusion that appellant was impaired."

State v. Artagos, 8th. Dist. Cuyahoga, No. 113107, 2024-Ohio-1369. Conviction for improper handling of a firearm in a motor vehicle under the influence of alcohol was affirmed. The defendant was stopped by the officers or being in a parked car in a public park after hours. The defendant was cited for trespass, but not arrested. When the officers approached the car they smelled marijuana. There was also an odor of an alcoholic beverage from the defendant’s breath. In response to the officer’s questions, the defendant told the officer the defendant had a gun in a holster on him. The gun was given to the officer. The defendant was found guilty of the charge after a jury trial.

The issue on appeal was the weight and sufficiency of the evidence to support the conviction. The appellate court distinguished the different standards of review for weight and sufficiency but treated together in this case due to overlapping arguments. (Par. 15). Although no field sobriety tests were conducted, the court held the testimony of the two officers about their experience dealing with intoxicated people was sufficient to support the conviction. (Par. 9, 23). The appellate court applied the OVI definition of “under the influence.” (Par. 20). The lack of field sobriety testing and blood or breath testing was not dispositive due to the officer’s observations of the defendant, including red, bloodshot eyes, repetitive questioning, and agitated behavior, along with both malt liquor can and marijuana in the car. (Par. 23). The court further found that the lack of an OVI citation did not establish the defendant was sober based on the officer’s testimony that they did not arrest him for OVI because they did not witness him operating the vehicle. (Par. 24). The conviction was upheld, but the appellate court vacated the probation condition requiring the defendant to comply with child support orders as it was not related to the charge.

Author’s Note: Under State v. Jones, 49 Ohio St.3d 51 (1990), a valid probation condition must have some relationship to the crime of which the offender was convicted. As such, a probation condition of no alcohol for a non-alcohol related offense was vacated. State v. McQuade, 8th. Cuyahoga, Dist. 112158, 2023-Ohio-1483. See also, State v. Lynn, 5th. Dist. Guernsey, No. 23CA00003, 2023-Ohio-4429, vacating an absolute ban on using drugs, without making exceptions for lawful, medical marijuana use does not reasonably serve the ends of community control. 

Indicia of impairment

State v. Pierce, 5th. Dist. Guernsey, No. 23CA000028, 2024-Ohio-1560. OVI and endangering children convictions were affirmed. The officer testified at the suppression hearing that he first saw the defendant’s car at 1:38 a.m. driving at inconsistent speeds and taking the curves of the road too fast. He also observed the vehicle drifting within the lane of travel between the curb fog lane and the double yellow center lane multiple times, including one time completely over the line. After he pulled the car over he asked the defendant for her driver’s license which she was unable to find. The officer smelled strong alcoholic beverage odor from inside the car. The front seat passenger told the officer he was intoxicated and continued to respond to questions the officer posed to the defendant. The defendant was asked to step out of the car and the officer smelled the alcohol from her breath. The defendant also admitted she had drank a few beers earlier that night. Based on his observations, field sobriety tests were performed and the defendant was cited for OVI and due to two young children in car seats in the backseat of the car, endangering children.

The appellate court noted that a request made of a validly detained motorist to perform field sobriety tests is generally outside the scope of the original stop and must be separately justified by other specific and articulable facts showing a reasonable basis for the request. (Par. 24. Citations omitted.). The defendant asserted that because the officer did not report red, bloodshot eyes, slurred speech, or lack of balance, there was no reasonable and articulable basis to request the defendant to perform field sobriety tests.

On review the appellate court set out a lengthy and non-exhaustive list of factors that are relevant to evaluate whether an officer had reasonable suspicion to administer field sobriety tests under the totality of circumstances including

1) the time of day of the stop (Friday or Saturday night as opposed to, e.g., Tuesday morning);

(2) the location of the stop (whether near establishments selling alcohol);

3) any indicia of erratic driving before the stop that may indicate a lack of coordination (speeding, weaving, unusual braking, etc.);

4) whether there is a cognizable report that the driver may be intoxicated;

5) the condition of the suspect's eyes (bloodshot, glassy, glazed, etc.);

6) impairments of the suspect's ability to speak (slurred speech, overly deliberate speech, etc.);

7) the odor of alcohol coming from the interior of the car, or, more significantly, on the suspect's person or breath;

(8) the intensity of that odor, as described by the officer ("very strong," "strong," "moderate," "slight," etc.);

9) the suspect's demeanor (belligerent, uncooperative, etc.);

10) any actions by the suspect after the stop that might indicate a lack of coordination (dropping keys, falling over, fumbling for a wallet, etc.); and

11) the suspect's admission of alcohol consumption, the number of drinks had, and the amount of time in which they were consumed, if given. 

12) the officer’s experience with intoxicated or impaired people.

(Par. 29. Citations omitted.)

Upon review of the evidence in the record, the court found the officer had a reasonable suspicion that the defendant was driving while intoxicated and was justified in conducting standardized field sobriety tests.

State v. Avery, 4th. Dist. Ross, No. 23CA12, 2024-Ohio-1642. OVI conviction for use of alcohol and marijuana was affirmed. The defendant was pulled over by the officer after crossing over the centerline of the road. The court found there was sufficient evidence to support the jury verdict, including,

Bicycle operation.

State v. Elton, 2d. Dist. Greene, No. 2023-CA-62, 2024-Ohio-1494. Conviction for not riding a three-wheeled cycle near to the right side of the roadway as practicable was affirmed. The defendant was riding a velomobile, a three-wheeled bicycle car propelled solely by human power. The velomobile is within the statutory definition of “bicycle.” R.C. 4501.01(K) and R.C. 4511.01(G). Although there was room near the right side of the road to allow other vehicles to pass, the defendant road the velomobile near the double yellow centerline on the road.

The defendant was cited for operating a bicycle in the middle of the road, impeding traffic. R.C. 4511.55(A) requires bicyclists to "ride as near to the right side of the roadway as practicable but does not require a person operating a bicycle or electric bicycle to ride at the edge of the roadway when it is unreasonable or unsafe to do so. Conditions that may require riding away from the edge of the roadway include when necessary to avoid fixed or moving objects, parked or moving vehicles, surface hazards, or if it otherwise is unsafe or impracticable to do so. (Par. 8). The officer testified there were no parked vehicles, surface hazards, and no foreign, fixed, or moving objects on the roadway that made it impractical for the defendant to travel on the right edge of the roadway. As a three wheeled vehicle, the defendant testified it was difficult to ride near the curb because of the angle of the roadway.

The defendant challenged the constitutionality of R.C. 4511.55 on the ground that the term “practicable” was vague and undefined. The appellate court found that the definition used in Columbus v. Truax, 7 Ohio App.3d 49, 454 N.E.2d 184 (10th Dist.1983), quoting State ex rel. Fast & Co. v. Industrial Comm., 176 Ohio St. 199, 201, 198 N.E.2d 666 (1964) as “capable of being put into practice or accomplished,” or something that is “reasonably possible was sufficient that a bicyclist of ordinary intelligence would be able understand what he or she is required to do under the law”. The fact that the statute does not provide a precise distance from which to ride the bicycle from the edge of the roadway does not render it unconstitutionally vague. (Par. 22).

Regarding the merits, the defendant argued that because R.C. 4511.27(A) three feet is considered a safe distance for a motorist to pass a bicycle, the road was too narrow for the bicycle or electric bicycle and an overtaking vehicle to travel safely side by side within the lane. R.C. 4511.55(C). The trial court found, however, that the width of the road was sufficient for a vehicle to safely pass by three feet if the defendant’s velomobile had been properly located on the road.

Author’s Note: Although this case was not alcohol related, an OVI offense includes the operation of a bicycle. Although the operation of a bicycle under the influence may be an OVI offense, operation is limited to any highway or upon any path set aside for the exclusive use of bicycles. R.C. 4511.52(A).Regarding a bicycle OVI,

Five day hearing.

Cleveland v. Oliver, 8th. Dist. Cuyahoga, No. 112330 2024-Ohio-1477. Failure to schedule an initial appearance for an OVI offense within five days of arrest was not grounds for dismissal of the charge and the OVI conviction was affirmed. R.C. 4511.191(D)(2) and R.C. 4511.196(A) require that a person's initial appearance on the charge be held within five days of his or her arrest or citation for the OVI offense. The purpose for requiring the initial appearance to be held within five days is to provide the person with the opportunity to appeal the ALS. Columbus v. Rose, 10th Dist. Franklin No. 06AP-579, 2007-Ohio-499.

The court in Rose found that the five-day requirement applied to the ALS, not the criminal charges filed against the defendant. The court in Rose further found that the "five-day limitation" in R.C. 4511.191(D)(2) and R.C. 4511.196(A) is directory, rather than mandatory, that it "simply fixes a time frame for a defendant's initial appearance" and that it "does not deprive a court of jurisdiction" over the OVI offense. The failure to conduct the hearing within five days was grounds for dismissing the administrative license suspension.

No contest/guilty plea

State v. Williams, 5th. Dist. Richland, No. 2023-CA-49, 2024-Ohio-1424. Convictions for weapons under disability, OVI, and failure to comply with order were affirmed. The defendant asserted ineffective assistance of counsel due to his attorney’s direction to enter a guilty plea instead of a no contest plea to the charges which precluded the defendant’s challenges to any trial court pretrial rulings. The court found that the defendant did not show a probability of prevailing on any pretrial motions. The court further found that defense counsel was successful in getting charges dismissed and reducing potential time of incarceration for the defendant. In addition, there was no evidence in the record that had the defendant been advised of the difference between a guilty plea and a no contest plea he would have rejected the plea deal.

Author’s Note: Although a trial court has the discretion to require a guilty plea instead of a no contest plea, the discretion must be made based on the specific facts of the case and not a blanket policy to require a guilty plea in all cases. State v. . Beasley, 152 Ohio St.3d 470, 2018-Ohio-470.

State v. Moore, 2024-Ohio-1354 (9th. Dist.). Dismissal of aggravated vehicular homicide indictment was affirmed. At the time of the indictment the defendant was serving a prison term for aggravated vehicular assault, leaving the scene of the collision, and driving under a suspended license convictions from the same incident. While in prison the victim died from the injuries incurred from the collision.

A subsequent charge when a person later dies from injuries after the defendant has been convicted is not barred by double jeopardy. (Par. 10. Citation omitted.). The state cannot indict a defendant for murder after the court has accepted a negotiated guilty plea to a lesser offense and the victim later dies of injuries sustained in the crime, unless the state expressly reserves the right to file additional charges on the record at the time of the defendant's plea. State v. Carpenter, 68 Ohio St.3d 59,1993-Ohio-226. (Syllabus of the Court).

The court noted that the prosecutor did not expressly reserve the right to pursue later charges against the defendant. The prosecutor argued that a reservation of right to proceed with additional charges only applies to negotiated pleas. In this case the defendant entered a plea to all of the charges without amendment or dismissal or other changes and no representation of sentence.

The court pointed out that as part of the plea negotiations, the prosecutor required a guilty, rather than a no contest plea, for the satisfaction of the victim and to assist the victim in a civil lawsuit that was pending at the time from this incident. When the defendant attempted to enter a no contest plea, the prosecutor objected on the grounds “it was in violation of the plea agreement.’ (Par. 16.). The court also noted that even though none of the charges were dismissed or amended, the defendant’s guilty plea relinquished the right to a trial at which the defendant could be acquitted and the state gains the benefit of obtaining a conviction without going to trial. Relying on State v. Dye, 127 Ohio St.3d 357, 2010-Ohio- 5728. From the record, the court determined the defendant had entered into a negotiated plea agreement and the state could not proceed with the homicide charge in the absence of a reservation of the right to do so at the time of the plea.

The dissent argued there was no plea agreement, the defendant entered a guilty plea to all charges without any sentencing agreement or recommendation, and therefore, the prosecution was not required to reserve the right to proceed with the subsequent homicide charge. In addition, the dissent noted that a negotiated plea is governed by Criminal Rule 11(F), which requires “the underlying agreement upon which the plea is based shall be stated on the record in open court.”

Sentencing issues.

  1. Consecutive felony/misdemeanor sentences.

State v. Criswell, 3d. Dist. Marion, No. 9-23-72, 2024-Ohio-1628. Sentence of 12 months on vehicular assault offense consecutive with 90 days on misdemeanor OVI offenses was affirmed. Generally, a misdemeanor sentence is served concurrently with a felony sentence. R.C. 2929.41(A). With vehicular assault or vehicular homicide however, R.C. 2929.41(B)(3), provides an exception for consecutive sentences with misdemeanor OVI or driving under suspended license offenses. The trial court in this case set out sufficient findings to support consecutive sentences under R.C. 2929.14(C)(4), even though that statute applied to consecutive prison sentences. This case involved a prison sentence (felony) consecutive with a jail sentence (misdemeanor).

B) Community control revocation.

State v. Thomas, 2d Dist. Montgomery, No. 29884, 2024-Ohio-1499. Probation revocation and imposition of jail sentence was affirmed. In a community control revocation hearing, criminal Rule 32.3, not Criminal Rule 11 applies. The court is required to conduct a hearing with the defendant present and apprise the defendant of the grounds before probation may be revoked. Due process requirements include 1) a preliminary hearing to determine whether there is probable cause to believe that the defendant has violated the terms of his community control; and 2) a final hearing to determine whether probation should be revoked. (Par. 10. Citations omitted.)

At the final revocation hearing, the trial court must inform the defendant of the reasons for which his probation is being revoked and provide an adequate record for review on appeal. If incarceration is imposed, the court must have informed the defendant at the original sentencing hearing or the sentencing hearing held in relation to a prior sanctions violation, of the potential sentence for a future violation. (Par. 11. Citations omitted.)

Upon finding a probation violation the court may:

  1. Extend the period of community control, not exceeding a total of five years,

  2. Impose more restrictive sanctions, or

  3. Impose incarceration up term that was originally imposed.

R.C. 2929.15(B)((Felony), R.C. 2929.25(A)(3) (Misdemeanor).

Although the defendant requested substance abuse and mental treatment, the trial court did not abuse its discretion by imposing a jail sentence in light of numerous prior violations of community control supervision conditions, including failure to comply with prior drug and mental health directives. The defendant’s assertion that he did not expect incarceration to be imposed when he admitted the violation does not establish that his admission was not knowingly, intelligently, and voluntarily made.

Author’s Note: By way of defense to his probation violation, the defendant asserted he was confused and overwhelmed by multiple reporting requirements in different courts. (Par. 7, 16.). R.C. 2951.022 addresses concurrent probation supervision and provides, with some exceptions, that when probation is imposed on a defendant in multiple courts, the court that has the longest term of incarceration shall supervise the defendant.

Civil liability and impaired driver

Boehne v. C.H. Robinson Worldwide, inc. No. 3:23-cv-158, 2024 U.S.Dist. LEXIS 71843 (N.D. Ohio, 2024). On a motion for default judgment in a wrongful death negligence action arising from a tractor trailer crashing into two cars and killing five people. The court found that the defendant breached his duty of care by operating the tractor-trailer under the influence of drugs when the collision occurred.

Schulte v. Steinke, 3d. Dist. Allen, No. 1-23-52, 2024-Ohio-1538. Summary judgment in favor of defendant/tavern owner and employees on dram shop claim was affirmed. The plaintiff’s decedent was killed in a collision by a driver under the influence of alcohol. R.C. 4301.22(B) prohibits a permit holder or any agent or employee of a permit holder to sell or furnish beer or intoxicating liquor to an intoxicated person. R.C 4399.18, commonly known as the dram shop act, imposes liability on the owner of a tavern or other liquor establishment for serving an intoxicate customer. In order to prevail, the plaintiff must prove 1) the permit holder knowingly sold an alcoholic beverage to 2) a noticeably intoxicated person.

There was no dispute that the driver was impaired and that the collision was the result of his impaired operation. Blood tests from the hospital showed BAC of .27 and .211 (one and a half hours later). There was no proof, however, that the driver had been drinking prior to the collision at the claimed tavern. Consequently, the defendants were entitled to prevail on their motion for summary judgment.

Author’s note: To prevail on a dram shop claim, the plaintiff must prove not only did the person obtain alcohol from the liquor establishment, but also that the person was noticeably intoxicated when served. Gressman v. McClain, 40 Ohio St.3d 359 (1988). In Ohio, unless serving someone underage, “a social provider of alcohol to an intoxicated person, unlike a permit holder, is not liable to third persons subsequently injured by the intoxicated person." Whelan v. Vanderwist of Cincinnati, Inc.11th. Dist. Geauga, No. 2007-G-2769, 2008-Ohio-2135.

Bowman v. Fairview Park, No. 1:23 CV 1406, 2024 U.S. Dist. LEXIS 70475, (N.D. Ohio 2024). Motion for judgment on the pleadings by municipality and officers on the plaintiff’s complaint from traffic stop and OVI conviction was granted. In his complaint the plaintiff alleged the defendants lacked "probable or just cause or reasonable suspicion or good faith evidence" to follow, stop, seize, test, and arrest him. The existence of probable cause is an absolute bar to a claim under 42 U.S.C. 1983 alleging an illegal search, seizure, detention, or prosecution. (Citations omitted.) The district court found that the plaintiff had been convicted of both OVI and open container and the convictions were affirmed by the 8th. District Court of Appeals. As such, the convictions were conclusive evidence of probable cause that bar the Section 1983 claims alleging an illegal seizure and arrest.

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