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Traffic Signals — July 2024

TRAFFIC SIGNALS NEWSLETTER

Dear Colleagues,August 9, 2024

This newsletter sets 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. While not all of the cases involve impaired driving, they raise pretrial and post-judgment issues that would apply to OVI and vehicular homicide and assault 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

I. Summary of cases, July, 2024.

OVI License Suspension Issues

Bowling v. Norman, 2024-Ohio-2658 (6^th. Dist.). Driver’s license suspension of CDL for OVI conviction was reinstated. The defendant was convicted of OVI. An OVI conviction under R.C. 4511.19 or comparable municipal ordinance mandates a one year license suspension of a CDL. R.C. 4506.15(A) describes conduct that is prohibited of holders of CDLs, which includes driving a motor vehicle in violation of R.C. 4511.19 or a municipal OVI ordinance as defined in R.C. 4511.181. R.C. 4506.15(A)(6). (Par. 21). R.C. 4506.16(D)(1) requires the registrar of the BMV to disqualify the holder of a CDL from operating a motor vehicle for one year for a first conviction for a violation of R.C. 4506.15(A)(2) through R.C. 4506.15(A)(12). A conviction under R.C. 4511.19 is a violation of R.C. 4506.15(A)(6) and therefore, results in a one year CDL suspension. (Par. 24).

The appellate court held the holder of the CDL need not be convicted under R.C. 4506.15(A)(6) itself. Because a conviction for violating R.C. 4511.19 is a violation of R.C. 4506.15(A)(6), it was not necessary that a defendant be charged and convicted under R.C. 4506.15(A)(6). (Par. 25 emphasis in the original).

The dissent asserted that R.C. 4506.15 is a separate criminal statute which requires a separate conviction under that statute to trigger the mandatory one year CDL suspension under R.C. 4506.16(D)(1). The defendant further asserted that although an element of R.C. 4506.15(A), an OVI conviction under R.C. 4511.19 by itself is not sufficient to require the one year CDL suspension.

State v. Mormile, 2018-Ohio-4858 (8^th. Dist.). Order granting unrestricted limited driving privileges was reversed. The defendant was convicted of OVI and aggravated vehicular homicide, receiving a four-year prison sentence and a ten-year license suspension. After two- and one-half years, the trial court granted a motion for judicial release, terminating the prison sentence and reducing the license suspension to three years. Four months later the defendant sought limited driving privileges.

Over objection of the prosecutor, the court granted driving privileges for occupational and educational purpose as directed by the probation department without any time or date limitation. R.C. 4510.13 permits a trial court to give limited driving privileges for an OVI suspension. If granted, the court shall specify the purposes, times, and places of the privileges and may impose any other reasonable conditions on the person's driving of a motor vehicle. R.C. 4510.021. (emphasis added). On appeal, the court found the driving privileges without limited times or places violated R.C. 4510.021. See also, State v. Manocchio, 138 Ohio St.3d 292, 2014-Ohio-785, (order granting driving privileges solely for daylight hours failed to comply with R.C. 4510.021.

Author’s Note: R.C. 4510.021(A)(1) through (5) permits the court to grant limited driving privileges for specific purposes. R.C. 4510.021(A)(6) permits additional driving privileges for “Any other purpose the court determines to be appropriate.” Although this section has been referred to a the “unlimited” limited driving provision, this general purpose provision is still subject to the time and place restrictions of R.C. 4511.021(A) to be valid.

OVI and Stop

State v. Kirby, 2024-Ohio-2543 (5^th. Dist.) An order overruling motion to suppress and OVI conviction were affirmed. The officer observed erratic operation of the defendant’s car. He also saw the rear license plate was on an angle, being secured by one bolt and resting on the bumper. The defendant was pulled over and after further inquiry and performance on field sobriety tests, was arrested for OVI.

Regarding the license plate as the reason for the initial traffic stop, R.C. 4503.21(A)(2) states “The license plate shall be securely fastened so as not to swing, and shall not be covered by any material that obstructs its visibility.” The court found although the license plate was not swinging at the time, it was not securely fastened, but was merely resting on the bumper with the potential to swing. (Relying on State v. Sheets, 2020-Ohio-6801 (5^th. Dist.) and State v. Dickerson, 2008-Ohio-6544, 179 Ohio App.3d 754 (2d. Dist.), in which the license plate was resting on the bumper and capable of swinging and distinguishing State v. Culberson, 2012-Ohio-448, 197 Ohio App.3d 705 (5^th. Dist.), in which the plate was at an angle, secured by one bolt, but lodged by the license plate holder and unable to swing. Therefore, the officer had a reasonable suspicion of criminal activity to justify the stop based on the condition of the license plate. (Par. 21). ¹

State v. Tyler, 2024-Ohio-2589 (5^th. Dist.). An order overruling motion to suppress and OVI conviction were reversed. The officer received a call about a fight involving a black Dodge Charger with orange stripes. The officer mistaken stopped a dark grey Dodge Dart. Although the officer realized the mistake as he approached the car, he continued his inquiry. Noticing multiple signs of alcohol impairment, the officer requested the driver to perform field sobriety tests and subsequently arrested her for OVI.

The prosecution had the burden to show there was reasonable suspicion based on specific and articulable facts that existed at the time of the investigatory stop. In this case the officer

realized his mistake prior to approaching the vehicle to perform an investigatory stop and was not permitted to detain the driver when he saw no erratic driving or had any had reason to believe the defendant was engaged in criminal activity. (Par. 20). Although the prosecutor argued it was reasonable to mistake a black Charger for a dark grey Dart, the court held the officer realized the mistake before any other specific and articulable facts leading to reasonable suspicion of criminal activity were discovered.

Blood/alcohol testing

State v. Quinones, 2024-Ohio-2552 (2d Dist). An order overruling motion to suppress and OVI conviction was affirmed. The officer first saw the defendant driving on the right lane line and stopping for a red light over the stop bar and crosswalk. Based on the officer’s observations at the stop, including slurred speech, smell of alcohol, bloodshot, glassy eyes, argumentative conduct, and short term forgetfulness, the defendant was asked to perform field sobriety tests. From the test results the defendant was arrested for OVI and minor traffic offenses.

After his arrest the defendant agreed to a breath test, he could not provide a valid sample. He then agreed to a blood test and was transported to a hospital for the test. The blood was drawn within two hours of the observed traffic violations, with the sample recorded, labeled, and sealed. The officer took possession of the sealed blood kit to take to the restricted police building for storage and refrigeration. The delivery of the blood kit was delayed due to the officer being called off for an unrelated emergency, with the blood kit delivered approximately one and a half hours after the blood was drawn. The test results were 0.0106.

Regarding the refrigeration delay, the appellate court noted Ohio Adm. Code 3701-53-06(G) (formerly Ohio Adm. Code 3701-53-05(F)), requires that all blood specimens "will be refrigerated" while not in transit or under examination. (Par. 50). The court in Quinones summarized the burden-shifting procedure for admissibility of alcohol test results as:

The defendant must first challenge the validity of the alcohol test by way of a pretrial motion to suppress * * *. After a defendant challenges the validity of test results in a pretrial motion, the state has the burden to show that the test was administered in substantial compliance with the regulations prescribed by the Director of Health. Once the state has satisfied this burden and created a presumption of admissibility, the burden then shifts to the defendant to rebut that presumption by demonstrating that he was prejudiced by anything less than strict compliance. * * * Hence, evidence of prejudice is relevant only after the state demonstrates substantial compliance with the applicable regulation. (Citations omitted.) (Par. 51).

The delay itself is not grounds to deny admission of the test. A previous four hour, ten minute delay before putting the blood in transit did not render the test result inadmissible for failure to substantially comply with administrative regulations. State v. Baker, 146 Ohio St.3d 456, 2016-Ohio-451, (Par. 21). An issue of fermentation of the alcohol from refrigeration delay, as opposed to consumption by the defendant, goes to the weight, not the admissibility of the blood test results. (Par. 52, citation omitted.). The court held that the defendant did not show any prejudice by the delay in the blood test refrigeration. The court also noted that the blood kit was in the officer’s car when he responded to the emergency and thus, still in transit.²

Plea procedures

1. Uncounseled Plea

State v. St. Thomas, 2024-Ohio-2568 (7^th. Dist.). A sentence for driving under suspended license conviction was reversed for lack of valid waiver of counsel. The defendant was charged with driving under a suspended license, a first degree misdemeanor. A proclaimed sovereign citizen, the defendant appeared in court, but would not enter a plea. The defendant asserted his right to travel and sought to have the case dismissed. The defendant was informed of a potential jail sentence if found guilty and the right to an attorney, including court appointed counsel if applicable. The defendant often interrupted the trial court as the effect of the available pleas were explained to him. The defendant said he wanted to represent himself. After further disputes by the defendant, the court entered a not guilty plea on behalf of the defendant and scheduled the case for a bench trial.

The defendant appeared for trial and again asserted he was representing himself without counsel. Upon completion of the trial, the defendant was found guilty. The defendant was given a fine and thirty days in jail, with additional 150 days suspended and twelve months’ probation. The defendant served the thirty days in jail during the appeal process.

Absent a knowing and intelligent waiver, no person may be imprisoned for any offense, whether classified as petty, misdemeanor, or felony, unless he was represented by counsel at his trial." State v. Wellman, 37 Ohio St.2d 162 (1974) paragraph one of the syllabus, citing Argersinger v. Hamlin, 407 U.S. 25 (1972). (Par. 18). The court noted that because of the potential jail sentence, there is a presumption against finding a waiver of right to counsel with the burden on the state to overcome the presumption. (Par. 21, citations omitted.).

The appellate court held a judge’s sufficient pretrial inquiry must go beyond just informing the defendant of a right to counsel, but also includes “the nature of the charges, the statutory offenses included within them, the range of allowable punishments, possible defenses to the charges and circumstances in mitigation thereof, and all other facts essential to a broad understanding of the whole matter.” State v. Gibson, 45 Ohio St. 2d 366, 377 (1976), relying on Von Moltke v. Gillies, 332 U.S. 708, 724 (1948). (Par. 23). In the present case the court found “Without a court's on-the-record notification of the ramifications of waiver of the right to counsel and the challenges inherent in self-representation, nothing shows that the waiver was knowing, intelligent, and voluntary.” (Par. 29). The court further found “the proper remedy when a defendant has been convicted of a petty offense, without the benefit of counsel and without a valid waiver of counsel, is to affirm the verdict but vacate any sentence of confinement.” The case was reversed for resentencing with the admonition that trial court cannot impose any sentence of confinement, including a suspended sentence. (Par 32).

State v. Dumas, 2024-Ohio-2731 (2d. Dist). A fourth degree disorderly conduct conviction was reversed. The appellate court found the trial court was required to inform the defendant of the effect of guilty, no contest, and not guilty pleas. The notice may be given orally or in writing. In the present case although the defendant signed a “plea form” which explained the effect of the three different pleas and would meet the requirement, the record did not demonstrate the defendant reviewed it prior to entering a guilty plea on the record before the judge.

2. Post judgment plea withdrawal.

State v. Evans, 2024-Ohio-2679 (3d. Dist.). An order granting withdrawal of post-judgment OVI conviction guilty pleas was reversed. About two weeks after the conviction the defendant filed a motion to withdraw the plea claiming lack of full discovery from the prosecutor. The motion was granted the next day.

Criminal Rule 32.1 permits the withdrawal of a post judgment plea to correct a “manifest injustice.” “A "manifest injustice" comprehends a fundamental flaw in the path of justice so extraordinary that the defendant could not have sought redress from the resulting prejudice through another form of application reasonably available to him or her.'" (Par. 20, citations omitted). The appellate court held the prosecution was not given a reasonable opportunity to respond. Based on the issues the prosecutor might raise, the trial court should then determine if a hearing is required. The order to withdraw the guilty plea was reversed to give the prosecutor an opportunity to present any evidence to rebut the defendant's claims.

State v. Woodfork, 2024-Ohio-2555 (2d. Dist.). An order overruling post-judgment motion to withdraw guilty plea and community control revocation were affirmed.

The motion to withdraw post judgment guilty plea based on the defendant’s claim he was under the influence of marijuana and Adderall at the time of the plea was properly overruled. At the time of the plea the defendant responded to the court’s inquires without any difficulty or lack of understanding. The defendant’s appropriate responses at the plea hearing and the fact that the trial court personally observed the defendant’s demeanor at the hearing did not support his self-serving statement that he was under the influence of drugs.³

The court upheld the probation violation based on the defendant’s continued refusal to enter into an inpatient drug treatment program. The court noted the right to continue on community control depends upon compliance with the conditions of community control and is a matter within the sound discretion of the trial court." Relying on State v. Eastman, 2021-Ohio-392 (2d. Dist.) and other citations. (Par. 43). Due to the multiple opportunities for the defendant to comply with the court’s probation condition of inpatient treatment and continued refusal, imposition of a prison sentence was not an abuse of discretion.⁴

Prohibiting marijuana use.

State v. Smith, 2024-Ohio-2854 (12th. Dist.). Probation violation for defendant’s use of medical marijuana was affirmed. The defendant was convicted of burglary. The defendant had kicked in his neighbor's door, took her dog, and placed several items from her home in her front yard looking for weapons of mass destruction. The defendant was placed on community control supervision and required to complete a treatment program with a mental health facility, comply with all recommended treatment, prohibited from possessing or consuming any alcoholic beverages or illicit drugs, and to random drug screens.

During community control supervision the defendant continued his erratic behavior, including auditory and visual hallucinations. The defendant continued to use medical marijuana which the treatment facility clinician suggested exacerbated the defendant’s mental health condition. After numerous positive drug screens, prior probation violations, and the defendant’s statement that he would continue using marijuana due to chronic back pain, the court imposed the suspended sentence.

The defendant asserted he has a valid medical marijuana card, marijuana is not an "illicit drug" in violation of the terms of his community control. The trial court found, however, the continued marijuana use lead to "moments of psychosis" and overall, noncompliance with his community control. (Par. 8).

The defendant argued on appeal that because the Ohio legislature has authorized licensed health professionals to recommend medical marijuana for treatment to alleviate pain, the trial court erred in revoking his community control based upon his medical marijuana use. The appellate court recognized that a medical marijuana card may or could possibly be an affirmative defense to a community control violation (Par. 18-19). When, however, there is some nexus or relationship between the offender's marijuana use and his underlying criminal behavior, the trial court may restrict the otherwise lawful use of medical marijuana. (Par. 21, citations omitted). In the present case the court found the defendant demonstrated concerning behavior throughout the case due to his marijuana use and mental health issues with both the underlying offense and later behavior while on probation. The court also noted the defendant rejected alternate remedies to manage his back pain. (Par.26). The court found the defendant’s possession of a valid medical marijuana card did not prohibit the trial court from restricting his marijuana use under the circumstances in this case. (Par. 24).

Author’s Note: Regarding the term “illicit drugs,” the court in Smith noted that although R.C. Chap. 3796 allows people with certain medical conditions, upon the recommendation of an Ohio-licensed physician, to purchase and use medical marijuana., it still continues to be illegal under federal law. 21 U.S.C. 841(a)(1) and 844. (Fn. 1). Similarly, the term “drug of abuse” is statutorily defined in R.C. 2925.01 (which incorporates R.C. 3719.011), but also R.C 4506.01 & R.C. 4511.181 for OVI offenses, which also adds “over-the-counter medication that, when taken in quantities exceeding the recommended dosage, can result in impairment of judgment or reflexes.” With the prevalence of both medical and recreational marijuana, the community control supervision conditions should be clearly defined to avoid confusion.

United States v. Lewis, Case No. 1:20-CR-00683-PAB-2, 2024 U.S. Dist. LEXIS 134938 (N.D. Ohio. 2024). Repeated positive screens with marijuana use results in violation of supervised pretrial release was ground to revoke bond.

Traffic Stop.

State v. Hobbs, 2024-Ohio-2601 (11^th. Dist.). Convictions for weapons under disability and other charges were affirmed. The defendant was initially stopped for a red light traffic violation. The defendant was charged with the traffic offense which was later dismissed at the commencement of trial. Regarding the validity of the stop, the appellate court found a red light traffic violation was sufficient grounds to stop a vehicle. "The State does not have to charge a motorist with a traffic violation in order to use the facts of such a violation to support reasonable suspicion to initiate a traffic stop."  "The State is only required to present reasonable and articulable facts which support the traffic stop."  (Par. 14. Citations omitted.). The court also noted the dismissal of the red light charge was not on its merits, but by motion of the prosecutor without any evidence presented to the court.

Drug dog alerts and prolonged stops.

State v. Kincaid, 2024-Ohio-2668 (4^th. Dist). An order overruling a motion to suppress and felony drug conviction upheld. The officer pulled the defendant over for a marked lane violation. The officer ran the license plate, and as he approached the car, recognized the defendant’s name as a known drug dealer. Although the officer was a canine handler with a drug dog with him, he called for backup for officer safety and did not run the dog until after the other officer arrived. After the dog alerted the police of drugs, the defendant was arrested. The officer did not issue a citation for the marked lane violation.

Reviewing the motion to suppress, the appellate court recognized that "knowledge of a person's prior criminal involvement (to say nothing of a mere arrest) is alone insufficient to give rise to the requisite reasonable suspicion" to justify a shift in an investigatory intrusion from the traffic stop to a firearms or drugs investigation. (Par. 13, citations omitted.). No suspicion or cause is needed, however, to run a dog around a stopped vehicle if performed contemporaneously with legitimate activities associated with the traffic violation. (Par. 14). As such, the issue is not the drug dog scan, but the timing of the scan if it unreasonably prolonged the stop for a traffic offense. United States v. Rodriguez, 575 U.S. 348, 354 (2015)(Par. 16).

In the present case the court found the delay was minimal, being only about ten minutes. In addition, the delay was not to get the drug dog who was already present at the scene, but instead, for officer’s safety.

The dissent noted once the officer decided not to issue a citation for the marked lane violation the defendant should have been permitted to leave because the reason for the stop had been addressed and there was no further justification to detain the defendant.

State v. Terry, 2024-Ohio-2723 (5^th. Dist.) An order overruling a motion to suppress and felony drug conviction were affirmed. On routine patrol at 12:30 a.m. an officer passed church parking lot and saw defendant passed out behind the wheel of the truck and conducted a welfare check. When the defendant was woke up, in response to the officer’s request for a driver’s license, the defendant reached into the Taco Bell bag on his lap and handed the officer two sauce packets. Because the defendant had a suspended license, he was allowed to call his girlfriend to pick up the truck. While waiting for her, a drug dog arrived and alerted the officers to drugs in the car. Eight baggies of methamphetamine were discovered.

On appeal the court found the initial stop was a consensual stop with the officer seeking to ask questions for voluntary, uncoerced responses. A consensual encounter occurs when a police officer approaches a person in a public place, engages the person in conversation, requests information, and the person is free to refuse to answer and walk away. This type of stop does not violate the Fourth Amendment unless the police officer has restrained the person's liberty by a show of authority or physical force such that a reasonable person would not feel free to decline the officer's request or otherwise terminate the encounter (Par. 29-30. Citations omitted.) The court noted the officer did not: activate his lights or siren, block the defendant’s vehicle with his cruiser, place the defendant in the back of the cruiser, or place him in handcuffs. (Par. 38). The delay at the scene was from the wait for the defendant’s girlfriend because the defendant was not licensed to drive the truck. Once the drug-sniffing canine alerted to the defendant’s truck, the officers had probable cause to search that vehicle for contraband. (Par. 43).

Procedural reversals.

1. Waiver of mandatory fine.

State v. Lyons, 2024-Ohio-2820 (10th. Dist.). Felony OVI conviction reversed. The trial court was requited to impose mandatory fine and could not waive fine based on an affidavit of indigency. The appellate court also noted the failure to inform the defendant at the time of the plea of mandatory jail sentence was reversible error.

2. Exclusion of expert report.

State v. Pajestka, 2024-Ohio-2593 (9^th. Dist.) OVI conviction reversed. Upon motion by the prosecutor, the defendant’s expert report was excluded as untimely filed under Criminal Rule 16(K) for a trial that was scheduled to begin in less than twenty one days. At the time of the filing the case had been pending for about nine months. Due to other issues, the trial was continued to January, 2021. The defendant refiled the previously excluded expert report in November, 2020 but the report was excluded due to the previous discovery sanction against the defendant.

Although the trial court could properly exclude the defendant’s expert report as untimely filed for the first trial date, the record did not show the prosecutor was prejudiced due to the continuation of the trial. (Par. 13). The appellate court held the expert report should not be excluded on timeliness grounds. Although the prosecutor raised other grounds to exclude the defense expert report at trial, (including the expert’s qualifications, accuracy of the single breath test, and the margin of error in the BAC Datamaster) the appellate court reserved those issues for the trial court on remand for a new trial.

3. Lack of allocution.

State v. Spaid, 2024-Ohio-2771 (11th. Dist.) Felony OVI conviction reversed for resentencing due to lack of allocution opportunity for the defendant to make a statement at sentence the hearing. At the time of the sentencing hearing the trial court asked if there was any reason why the case could not go forward and offered an opportunity for the prosecutor and defense counsel to make a statement. The defendant was not asked directly if he wanted to make a statement. A fifteen-month sentence was imposed.

Criminal Rule 32(A)(1) requires the trial court, after inquiring with defense counsel, to provide the defendant with an opportunity to make a statement on their own behalf or present any information in mitigation of punishment. The right of allocution permits a defendant to speak on their own behalf and is the defendant's last opportunity to present any information in mitigation of punishment, plead their case or express remorse. Relying on State v. Green, 90 Ohio St.3d 352, 2000-Ohio182 and State v. Reynolds, 80 Ohio St. 3d 670, 1998-Ohio-171. (Par. 12).

The court in Spaid held that a general statement to the defendant does not satisfy this requirement. Nor does the inquiry to defense counsel. Instead, the trial court has an affirmative duty to directly ask the defendant if the defendant wants to make a statement before sentence is imposed. The court held a question posed to defense counsel or a general statement of “Anything else?’ is not sufficient to meet the requirements of Criminal Rule 32. (Par. 18).

Author’s Note: Although a defendant has a right to allocution, the Fifth Amendment privilege against self-incrimination applies to sentencing hearings. Mitchell v. United States, 526 U.S. 314 (1999). When a defendant is facing other charges or potential probation violation, the trial court should caution the defendant, directly or through defense counsel on the record, about making a statement. One way to address the issue is to explain on the record that the defendant has a right to make a statement on the present case but may also waive.

4. Lack of jury waiver.

State v. Simpson, 2024-Ohio-2865 (11th. Dist.). Conviction by bench trial reversed when the defendant had made a timely jury demand which was not withdrawn. The appellate court noted the defendant had a right to a trial by jury under the Sixth Amendment of the United States Constitution and Art. I, Sec. 10 of the Ohio Constitution. A defendant is entitled to a trial by jury when the potential penalty involves either a possible jail sentence or a fine more than $1,000. R. C. 2945.17.

R.C. 2945.05 sets out specific language for a jury waiver. The statute further provides the waiver must be made in open court after the defendant has been arraigned and has had opportunity to consult with counsel. In the present case the appellate court held the trial could not proceed with a bench trial after a timely jury demand was made when there was no waiver in compliance with R.C. 2945.05. Moreover, relying on State v. Pless, 74 Ohio St. 3d 333, 1996-Ohio-102, the absence of a valid jury waiver was jurisdictional. (Par. 65).

Author’s Note: For a misdemeanor offense with a penalty up to six months, a jury demand must be filed at least ten days prior to trial. Crim. R. 23(A). The ten day time limit does not apply to a misdemeanor offense with a penalty greater than six months and is the only restriction for a jury trial in a misdemeanor charge. The right to a jury trial in a misdemeanor case may not be limited by local court requirement for advance jury deposit. State v. Hatton, No. 1633 through 1641, 4^th. Dist. (Dec. 8, 1983).

No right to a preliminary hearing.

State v. Howard, 2024-Ohio-2527 (12^th. Dist). The defendant was not prejudiced by dismissal of felony charges in the municipal court prior to the preliminary hearing due to intervening indictment of the same criminal charges in the common pleas court.

State ex. rel. Peterson v. Miday, 2024-Ohio-2693. Dismissal of prohibition complaint was affirmed. Although the case was not bound over from the municipal court to the common pleas court, the intervening indictment vested the common pleas judge with jurisdiction to hear and determine the felony charge.

The court found the jurisdictional priority rule does not apply to felony charges filed with a municipal court when an indictment was later filed in the common pleas court because the two courts do not have concurrent jurisdiction in felony cases. A municipal court’s jurisdiction is limited to setting bond and conducting a preliminary hearing and there is no jurisdictional conflict between to two courts in felony cases. (Par. 17, 20). R.C. 1901.20(B).

Sentencing and other trial issues.

State v. Yeban, 2024-Ohio-2545 (1^st. Dist.). The OVI conviction was affirmed, but 180 day sentence for first offense was reversed. A police dispatcher received a call at 1:22 a.m. that a car had driven off the road on to the adjoining grassy area. The driver was not awake, but the car was running. After the caller honked the horn, the defendant/driver woke up. Firefighters, paramedics and police responded. The defendant was given field sobriety tests and submitted to a breath test with .202 BAC. Although the defendant told the police at the scene he could not remember anything about the crash, he testified at trial that a woman was driving the car who ran away after the collision. The defendant further testified he did not tell the police because he did not want his girlfriend to know. The jury returned guilty verdicts on both the BAC and impaired driving OVI charges, which were merged for sentencing. The court imposed a 180 jail sentence.

Prosecutor’s comments in closing argument.

A comment by a prosecutor in closing argument on an officer’s demeanor and professionalism did not amount to improper witness vouching or and was not a comment on the witness’ credibility by referencing facts outside the record or putting his own personal credibility at issue. (Par. 29)

Dispatch recording.

The defendant objected to the admission of the dispatch recording from the caller at the scene. The court held the recording was admitted as an exception to hearsay as a “present sense impression”. Under Evid. Rule 803(1). “The principle underlying this hearsay exception is the assumption that statements or perceptions, describing the event and uttered in close temporal proximity to the event, bear a high degree of trustworthiness.” (Par. 43. Citations omitted.). The appellate court noted the caller was actively observing the vehicle at the time he made the call.

Confrontation Clause Issues.

The defendant asserted the admission of the officer’s body cam recording video without affording the defendant the opportunity to cross-examine the officer about what the defendant said in response to the officer’s questions violated the Confrontation Clause of the U.S. Constitution., 6^th. Amendment. The recording officer was not present at the trial. The appellate court found a statement by the officer accusing the defendant to be under the influence was nontestimonial. The primary purpose for the statements may have been informational rather than testimonial. (Par. 51). Nontestimonial statements fell outside the Confrontation Clause.

Moreover, even if the statement was error, it was harmless with the evidence of intoxication was so overwhelming that the body-worn camera video could not have had a prejudicial effect on the jury's verdict.

Vehicle Operation

The defendant asserted no one saw him operate the car. The court noted that whether the defendant caused movement of the vehicle is a fact that may be proved by circumstantial evidence. In this case evidence the defendant was not awake while sitting in the driver's seat of a car off the road, over a curb, parked in the grass with the back end of the car in the street, and with the motor still running was sufficient to support a finding that the defendant was operating the vehicle. (Par. 60).

Sentencing considerations

R.C. 2929.22(C) limits imposing a maximum sentence for defendants who commit the worst forms of offense or whose conduct and response to prior sanctions for prior offenses demonstrate that the imposition of the longest jail term is necessary to deter the offender from committing a future criminal offense. (Par. 69). Although there is a presumption trial courts considered the proper statutory criteria for a misdemeanor sentence, that presumption, however, is destroyed when the trial court introduces an improper factor into the maximum sentencing determination. (Par. 70).

In this case the defendant declared he was a sovereign citizen. In sentencing, the trial court noted the seriousness of the offense and the ineffectiveness of probation to a defendant who did not recognize the court’s authority. The sentence was also based in part on the defendant’s admission of lying on the witness stand. The appellate court found these factors were not directly related to the convicted offense and outside those factors set out in R.C. 2929.22(C), relying on State v. Brooks, 2006-Ohio-4610 (7^th. Dist.)

Dissent (on sentencing issue)

The dissent asserted the sentence was proper, noting that the loss of control of the vehicle posed a risk of serious harm to innocent people, lack of remorse, and a high level of impairment as exhibited by the defendant’s conduct and breath-test result was sufficient to find it was the “worst form of the offense" under R.C. 2929.22(C). The dissent quoted State v. O’Malley, 169 Ohio St.3d 476, 2022-Ohio-479 that "The drunk driver essentially plays Russian roulette every time he or she drives on the road while impaired.". The dissent also found the defendant’s admission to lying under oath was probative of the defendant’s prospects for rehabilitation and a proper sentencing factor. (Relying on State v. Black, 2019-Ohio-5017 (9^th. Dist.))

OVI/Vehicular homicide specifications.

State v. Holbrook, 2024-Ohio-2837 (6th. Dist.). Convictions for aggravated vehicular homicide with a specification for having multiple prior convictions of operating a vehicle under the influence, failure to stop after an accident, and OVI, following the defendant’s guilty pleas were affirmed. An aggerate eleven to fourteen year prison sentence was imposed. The defendant had three prior OVI convictions, all of which were more than twenty years old.

On appeal the defendant challenged the application of the specification adding a three year sentence for multiple OVI violations. The defendant asserted that under R.C. 2941.1413 the specification applied only to OVI convictions within twenty years. This specification, however, is limited to when the charge is an OVI offense under R.C. 4511.19(A) or an equivalent offense. In the present case the defendant was charged with a specification under R.C. 2941.1415, which applies to vehicular homicide under R.C 2903.06. R.C 2941.1415 does not contain a “look back” limitation for prior OVI convictions.

Distinguish:

R.C. 2941.1413. Applies when the defendant is charged with felony OVI (R.C. 4511.19(A)) and has either five prior OVI convictions within the past twenty years or has been previously convicted of this specification.

R.C. 2941.1415. Applies when the defendant is charged with vehicular homicide (R.C. 2903.06) and has three or more OVI convictions in his/her lifetime.

2. Upcoming Education Opportunities

• September 19-20, 2024, Annual Meeting of the Ohio Judicial Conference, Easton, Ohio. Registration now open.

• September 26-29, 2024, National Interdisciplinary Cannabis Symposium with the American Judges Association, New York Law School, Tribeca, New York. Information at www.nationalinterdisciplinarycannabissymposium.com

• November 18-20, 2024, National Alliance to Stop Impaired Driving (NASID) Conference. Location :  Renaissance Arlington Capital View, 2800 South Potomac Avenue, Arlington, VA 22202. More information and registration at https://www.responsibility.org/

• November 21, 2024, Lean Forward Veterans Summit, Villa Milano Banquet & Conference Center, 1630 Schrock Road, Columbus, Ohio 43229. (Free, in-person event)

• January 29-31, 2025, Summer meeting, Association of Municipal and County Court Judges of Ohio, Embassy Suites, Dublin, Ohio.

2025 conferences to think about as annual budgets are prepared.

• March 9-11, 2025, Lifesavers conference, Long Beach California.

• RISE25 Conference, May 28-31, 2025, Kissimmee, Florida.

Free NJC Traffic and other related Programs Online Courses

• August 15, 2024, 11:00a.m., The lifesaving benefits of Nalmefene and Naloxone.

• August 22, 2024, 11:00 a.m., Description of Opioid Crisis, its Extent and How it affects the Critical Work that Criminal Justice Professionals Do.

• December 4, 2024, 3 PM (Eastern): Impaired Driving in 2024: Where Are We? (Hon. Neil Axel)  Register here:  Impaired Driving 2024: What’s New?

Other resources.

• Oral Fluid Roadside Screening – A Tool for Law Enforcement  National Alliance to Stop Impaired Driving (NASID), (On-Line video).

• Judges’ Guide to Mental Health Diversion, A Judges’ Guide to Mental Health Diversion, December 2023, National Center for State Courts, (written materials from past course.)