← All posts

Traffic Signals — November 2024

TRAFFIC SIGNALS NEWSLETTER

Dear Colleagues,December 12, 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.

The case summaries provide recent appellate decisions regarding Ohio law as applied to factual matters as well as interpretations and application of statutes and prior case law. Some of the cases involve the odor of marijuana as probable cause to detain a defendant or search a car. These cases predate the adoption of Ohio Adult Cannabis Use in November, 2023, increasing greater use of marijuana as of December 7, 2023.

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, November, 2024.

Probable cause for OVI arrest

Field Sobriety observations.

State v. Duncan, 2024-Ohio-5290 (1^st. Dist.). OVI conviction and order overruling motion to suppress were affirmed. The defendant was involved in a two car collision. The defendant got out of her car and acted erratically at the scene to the extent an uninvolved person stopped to let the other driver get into her car for personal safety. Two officers arrived at the scene. Although the defendant denied consuming alcohol, the officers testified the defendant’s her eyes were glassy and bloodshot, and her speech was slurred. From their observations, field sobriety tests were administered to the defendant.

One of the officers was in training and the tests were not administered in compliance with the NHTSA manual. As a result, the field sobriety tests were suppressed by the trial court, but the court found from the remaining evidence supported probable cause to arrest the defendant for OVI. (Par. 6).

Exclusion of field sobriety test results does not automatically mean lack of probable cause for the arrest. The court noted an officer has probable cause for an OVI arrest when based on the totality of the facts and circumstances at the time of the arrest the officer “had sufficient information, derived from a reasonably trustworthy source that was sufficient to cause a prudent person to believe that the suspect was driving under the influence. The standard is not actual criminal activity, but a probability or substantial chance of such activity. (Par. 9, relying on State v. Homan, 2000-Ohio-212.).

In this case the court found, notwithstanding the omitted field sobriety test results, the defendant’s erratic and sometimes uncooperative behavior, odor of alcohol, and inconsistent statements were sufficient evidence of probable cause for her arrest. The appellate court upheld the testimony of the officer’s observations of the defendant, including her inability to follow the field sobriety instructions. (Par. 14). The court distinguished between the results of the HGN test and mere observations made throughout the administration of it. (Par.18, emphasis in the original.). A lay witness as well as a police officer may testify about observations when an individual appears intoxicated, which is both relevant and admissible pursuant to Evid. R. 401 and Evid. R. 402. (Par. 15, citations omitted.). The court found the officer’s observations about her inability to focus and comply with instructions could be understood by a lay witness observation. (Par. 17.).

Observations of vehicle operation.

State v. Hosler, 2024-Ohio-5372 (11^th. Dist.). Denial of motion to suppress and convictions for OVI and failure to control were affirmed. The officer was two cars behind the defendant at a traffic light. When the traffic light turned green, the defendant did not immediately start, but finally proceeded, striking the curb as he completed a left hand turn. After the turn, the defendant continued to weave to the right side of the road. The officer attempted to initiate a traffic stop, but the defendant kept driving. The officer turned on the overhead lights and when the defendant continued to drive, the officer turned on the siren. The defendant initially used a left hand turn signal, but switched to a right side turn signal and pulled into a parking lot to stop.

The court found the officer had a reasonable suspicion to stop the defendant after the officer saw the defendant’s car hit the curb. Although the incident was not recorded on the dash cam, the court noted the dash cam was fixed to record forward motion and not the turn when the defendant went off camera. The testimony of the officer that he was close enough to the defendant’s car when the turn was made was sufficient to support the reasonable suspicion finding.

Compliance with HGN requirements.

State v. Ruffin, 2024-Ohio-5626 (6^th. Dist.). Order overruling motion to suppress and felony OVI conviction were affirmed. The defendant was involved in a collision with a truck when the two vehicles merged into the same lane. When the officer arrived, he determined the defendant had been drinking due to the smell on the defendant’s breath. When the officer asked the defendant to move to the side of the road to perform the HGN test, the defendant refused, staying behind his car facing the blinking lights of the truck. The officer found four clues from the HGN test with any other clues not available due to the defendant’s refusal to follow the stimulus. The defendant refused any more field sobriety tests as well as the breathalyzer back at the station.

Judicial Notice of NHTSA Manual.

At the suppression hearing the judge declined the defendant’s request to take judicial notice of the NHTSA Manual. The appellate court found prior case law permits a trial court may take judicial notice of the NHTSA standards governing the administration of field sobriety tests, including the HGN test. (Par.  20, citations omitted.). The court found harmless error in light of the defendant given a full opportunity to use and cross examine the officer on the procedures set out in the manual. (Par. 22).

Reasonable Suspicion to Conduct Field Sobriety Tests.

The court found the evidence of glassy eyes, an odor of alcohol, and a 1:00 a.m. collision were sufficient grounds of reasonable suspicion to permit the officer to conduct field sobriety tests. In arriving at this conclusion, the court noted the level of suspicion required to meet the reasonable-suspicion standard is obviously less demanding than that for probable cause. (Par. 32).

Probable Cause to Arrest. And HGN.

"The legal standard for determining whether the police had probable cause to arrest an individual for OVI is whether, at the moment of arrest, the police had sufficient information, derived from a reasonably trustworthy source of facts and circumstances, sufficient to cause a prudent person to believe that the suspect was driving under the influence." (Par. 35, citations omitted.). In the present case the court found the defendant’s involvement in the traffic crash at 1:00 a.m., the odor of alcohol, his glassy eyes, his statement that how much he had to drink "ain't got nothing to do with it," the presence of four out of six clues on the HGN test, and his conduct in being "pleasantly uncooperative" when asked to perform the walk and turn test established probable cause for the OVI arrest. (Par. 36).

The defendant challenged the admissibility of the results of the HGN test as a factor for probable cause. An officer may testify about the field sobriety test results if it is shown by clear and convincing evidence that the tests were administered in substantial compliance with reliable, credible, and generally accepted tests such as those in the NHTSA manual. R.C. 4511.19(D)(4)(b). (Par. 37). Among other things, the defendant argued Optokinetic Nystagmus occurred because the test was conducted too close to the semi-truck's blinking hazard lights and he was facing rapidly moving traffic in close proximity. (Par. 39). Quoting the NHTSA Manual, the court noted,

Optokinetic Nystagmus occurs when the eyes fixate on an object that suddenly moves out of sight, or when the eyes watch sharply contrasting moving images. Examples of Optokinetic Nystagmus include watching strobe lights, rotating lights, or rapidly moving traffic in close proximity. (Par. 39).

In this case the court found from the video evidence the Optokinetic Nystagmus was avoided because the defendant was able to fixate on the stimulus as it is moving. (Par. 40). The court also found the truck and the roadside traffic were sufficient distance away from the defendant that neither interfered with the HGN test.¹

State v. Watterson, 2024-Ohio-5456 (1^st. Dist.). Order overruling a motion to suppress and conviction for motorcycle OVI was affirmed. The officer responded to a single vehicle crash. At the scene the defendant had a strong odor of alcohol from her breath. Field sobriety tests were administered and as a result the defendant was arrested for OVI.

Although the court noted that field sobriety tests administered in compliance with NHTSA standards are reliable, credible, and generally accepted, the court did not address the manner in which the tests were administered in this case. (Par. 33). Instead, the court found the nature of her motorcycle crash (sliding off the back), the smell of alcohol, and officer observations before and during field sobriety testing, established probable cause for an OVI arrest. (Par. 35).

Regarding the defendant’s assertion that the breathalyzer was not administered in compliance with regulations contained in the Ohio Administrative Code, the court found the defendant’s motion to suppress merely stated that she challenged "any test" related to her blood-alcohol level. This general statement, without any reference to a specific code section, was not sufficient to comply with the requirements of Criminal Rule 47 to state with particularity the grounds for suppression. (Par. 40). Although defense counsel stated the grounds with specific particularity in opening statement at the suppression hearing, it did not cure a defendant's failure to specifically state the grounds to give notice to the prosecutor. (Par. 40). The court noted that while particularity does not require excruciating detail, the motion must provide sufficient notice to the state. (Par. 40, relying on State v. Codeluppi, 2014-Ohio-1574.)

Insufficient evidence for stop or arrest.

1. Detain for drug dog sniff.

United States v. Taylor, No. 23-5344, 2024 U.S. App. LEXIS 29055, (6^th. Cir. 2024). Although the defendant was stopped for speeding, further detention of the defendant for a drug dog sniff was not reasonable based on the officer’s observations of multiple air fresheners in the defendant’s car and the defendant’s past criminal history. To justify delaying a driver after the time that was necessary to complete the traffic citation, the officer there must be some reasonable suspicion of wrongdoing (other than a traffic offense). Rodriguez v. United States, 575 U.S. 348, 354, 135 S. Ct. 1609, 191 L. Ed. 2d 492 (2015). The court noted the strong odor of air fresheners during a traffic stop plays more of a supporting role to other, stronger indicators of criminal activity in making the reasonable-suspicion determination, relying on United States v. Torres-Ramos, 536 F.3d 542, 553 (6th Cir. 2008). The court found the air freshener was not a significant factor in the absence of any odor of marijuana or other illegal drugs.

B) Odor of alcohol alone not enough.

State v. Hoey, 2024-Ohio-5399 (5^th. Dist.). An order granting a motion to suppress in an OVI arrest was affirmed. An appeal was taken by the state in accordance with Criminal Rule 12(K). The officer approached the defendant for a welfare check after seeing the defendant who was pulled over to the side of the road. When the officer approached the defendant the defendant’s breath had a slight alcohol odor and the defendant had admitted he had been recently drinking. The officer did not see any erratic driving as the car was parked the entire time.

Field sobriety tests results are not required to determine probable cause in an OVI arrest when there is other indicia of impairment. (Par. 28, relying on  State v. Judy, 2008-Ohio-4520, ¶ 27 (5th Dist.), citing Oregon v. Szakovits, 32 Ohio St.2d 271 (1972)).In this case the defendant wanted to take the field sobriety tests, but the officer did not feel comfortable administering the tests. For probable cause, the test is whether, at the moment of the arrest, the officer had knowledge from a reasonably trustworthy source of facts and circumstances sufficient to cause a prudent person to believe that the suspect was driving under the influence of alcohol." State v. Medcalf, 111 Ohio App.3d 142, (4th Dist.1996). In the present case the only evidence was the alcoholic beverage odor. From the evidence the court found lack of probable cause for an OVI arrest.

Failure to comply with police order.

State v. Rochester, 2024-Ohio-5306 (6^th. Dist.). Convictions for failure to comply with order or signal of police officer and a single count of driving under suspension were affirmed. The officer testified that prior to the incident he recognized the defendant from around town and learned the defendant had an outstanding parole violation warrant. On the day of the incident the same officer saw the defendant’s truck outside of a known drug house and after circling the block, saw the defendant get into the driver’s side of the truck and drive away. When the officer activated the overhead lights, the defendant initially pulled into a parking lot but then accelerated, driving through numerous intersections, running stop signs and stop lights, making multiple marked lane violations, and weaving in and out of lanes. (Par. 8). Once outside the city limits, the defendant accelerated from 80 to 120 miles per hour.

The officer continued the chase across fields onto dirt roads, receiving help from unrelated people motioning the defendant’s direction. With further bystander directions, the officer found the defendant’s truck in a parking lot with the defendant running away. After being tased and struggling, the defendant was apprehended.

Failure to comply with a police officer’s order is a first degree misdemeanor unless the enhancement provisions of R.C. 2921.331(C)(4) or (5) apply. In this case, the charge included the operation “by the offender caused a substantial risk of serious physical harm to persons or property." R.C. 2921.331(C)(5), a third degree felony. The court noted the state is not required to prove the defendant actually caused or almost caused serious physical harm to persons or property. (Par. 36, emphasis in the original, citations omitted.). Moreover, “high-speed chases inherently create a substantial risk of physical harm to the driver, officers, and other motorists on the road, since high speeds increase the likelihood and severity of crashes." (Par. 37, citations omitted.).

The defendant asserted a lack of substantial risk of harm because the officers did not break off the pursuit. The court held, relying on State v. Owens, 2022-Ohio-2908 (6^th. Dist.), to establish a substantial risk of harm the state did not have to show the defendant’s conduct so dangerous that officers were required to abandon their pursuit. (Par. 39).The court found the officer’s uncontroverted testimony and the dash cam video was sufficient to support the verdict of substantial risk of physical harm. (Par. 38).²

On the defendant’s 30 month sentence, the court found that the factors set out in R.C. 2921.221(C)(5)(b) regarding proof of substantial risk of harm were also valid sentencing factors.

(i) The duration of the pursuit;

(ii) The distance of the pursuit;

(iii) The rate of speed at which the offender operated the motor vehicle during the pursuit;

(iv) Whether the offender failed to stop for traffic lights or stop signs during the pursuit;

(v) The number of traffic lights or stop signs for which the offender failed to stop during the pursuit;

(vi) Whether the offender operated the motor vehicle during the pursuit without lighted lights during a time when lighted lights are required;

(vii) Whether the offender committed a moving violation during the pursuit;

(viii) The number of moving violations the offender committed during the pursuit;

(ix) Any other relevant factors indicating that the offender's conduct is more serious than conduct normally constituting the offense.

In this case, even though the trial court did not expressly refer to these factors for sentencing, the appellate court found the trial court’s reference at sentencing to the police video played during the trial was sufficient.

Author’s Note: While the factors for determining substantial risk of harm apply to R. C. 2921.331 offense, they are not limited to that offense and some may be useful for sentencing consideration in other traffic cases.

State v. Seibert, 2024-Ohio-5257 (3d. Dist.). Conviction for failure to comply with an order or signal of a police officer was affirmed. The offense was a third degree felony in violation of R.C. 2921.331(B)/(C)(5)(a)(ii), to willfully elude or flee a police officer after receiving a visible or audible signal from a police officer when the “operation of the motor vehicle by the offender caused a substantial risk of serious physical harm to persons or property.” The officer was following a car and attempting to verify an expired license plate. The defendant sped away. The officer drove as fast as 71 mph in a 25 mph zone, 75 mph in a 35 mph zone, and 84 mph in a 55 mph zone while following and trying to catch the car. The officer witnessed two near collisions and broke off the chase. After subsequent investigation, the defendant was located a few days later. The car had been recently painted, but the officer identified both the car and the defendant from surveillance video from the date of the chase.

Weight of the evidence.

Affirming the conviction, the appellate court found, based on the evidence presented, that a jury could conclude the defendant’s actions created a substantial risk of serious physical harm to persons, or serious physical harm to property. (Par. 29, relying on State v. Hopkins, 2010-Ohio-2441, ¶ 24 (5th Dist.) (holding that the fact that defendant did not cause an actual collision with another vehicle is irrelevant.). See also, State v. Scott, 2012-Ohio-3811, ¶ 19 (8th Dist.) (substantial risk of serious physical harm to persons or property, not actual harm was required to support conviction.)

Issue of willfulness.

"Willful" is not defined in R.C. 2901.22, which is the statutory section that defines culpable mental states for criminal liability, but has been construed to be equated with purposely. State v. Cole, 2011-Ohio-409, ¶ 22 (3d Dist.). (Par. 33). The court found the evidence presented at trial, including running multiple stop signs, weaving through multiple car at a high rate of speed with the officer behind him with both lights and siren constitute significant circumstantial evidence from which a jury could conclude that Seibert was fleeing "willfully." (Par. 35).

State v. Fiske, 2024-Ohio-5467 (5^th. Dist.). Conviction for failure to comply with an order or signal of a police officer was affirmed. The defendant was parked in a known drug area and when the officer pulled up, the defendant drove away at a high rate of speed. The defendant’s speed exceeded one hundred miles an hour on country roads in the dark. Despite evidence of two officers from two counties pursuing the defendant with both lights and sirens, the defendant claimed he was not aware of the officers as he was on the phone with earbuds. In affirming the conviction, the appellate court noted that the defendant’s testimony that he was unaware of the pursuit defied common sense and even if he failed to hear the sirens, it is unlikely he never glanced in his rearview mirror and noticed the officers' lights. (Par. 17-18).

Author’s Note: R.C. 4511.84 prohibits wearing earphones or earplugs in both ears while operating a motor vehicle.

State v. Bissell, 2024-Ohio-5317 (8^th. Dist.). Appeal of conviction for failure to comply with the order or signal of a police officer and felony murder were reversed as unsupported by sufficient evidence.³ The defendant drove around police cars at the scene of a vehicle collision instead of slowing down with other traffic and struck a firefighter who was called to the collision scene. The firefighter died from the injuries. After a bench trial, the defendant was convicted of felony murder, two counts of felonious assault, involuntary manslaughter, failure to comply with a lawful order, aggravated vehicular homicide, and failure to stop at the scene of an accident.

Failure to comply with lawful order

In reversing this conviction, the court found there was no testimony regarding an order or direction by a police officer, and no officer testified that they were invested with the authority to direct traffic. Consequently, there was insufficient evidence to support the conviction. (Par. 13). A conviction for failure to comply under R.C. 2921.331(A) requires evidence that there was (a) a lawful order or direction, and (b) that the order or direction came from an officer invested with authority to direct, control, or regulate traffic. (Par. 12, relying on State v. Thigpen, 2016-Ohio-1374 (8th Dist.)). The appellate court rejected the State’s position that the large police presence and the fact of other drivers moving to Lanes 3 and 4 while the defendant travelled in Lane 2 was sufficient to establish that he failed to follow the lawful direction of police officers. (Par. 11).

The dissent asserted that there was heavy police presence at the scene with officers directing traffic and placing their vehicles on the road with flashing lights. All of the other traffic slowed and remained in the two open lanes. Under the circumstances it was reasonable to find the defendant drove direct contravention of the police's direction of traffic.

Felony-murder and involuntary manslaughter and involuntary.

The appellate court held the evidence did not support a finding that the defendant acted knowingly to support a finding of guilt for felonious assault which was the predicate felony for the felony-murder charge. In arriving at this conclusion, the court held the defendant’s rate of speed alone was not sufficient to show he acted knowingly. Instead, although the rate of speed was a factor, the state needed to show the defendant knowingly used his car to cause serious physical harm.

The court noted the distinction of knowingly as probability and recklessness as likelihood, finding the mens rea consideration included not only the surrounding circumstances but also, disregarding a substantial risk rather than the degree of certainty that a result will occur. (Par. 27). The mens rea examination is and must be independent of the separate consideration of the resulting harm. (Par. 27). Finding that the defendant’s conduct was reckless, the court vacated the felony-murder conviction, but found the court found there was sufficient evidence of recklessness for involuntary manslaughter and remanded the case for resentencing.

Probation issues.

Prohibition against entering any place that serves alcohol.

State v. Ice, 2024-Ohio-5341 7^th. Dist.). Affirming probation condition in OVI conviction prohibiting entry to any premises serving alcohol. The defendant asserted she did not have a substance abuse problem and the condition would interfere with her ability to attend business functions.

The court found the probation condition was not so broad or vague as to require invalidation and was reasonably related to rehabilitating an OVI defendant. The court also found the condition was limited to premises serving alcohol, distinguished from all locations where alcohol could be in stock. (Par. 19, citing State v. Weimer, 2005-Ohio-2361, ¶ 45 (11th Dist.).) The court emphasized the condition would clearly not encompass stores where alcohol is merely sold or distributed without service for consumption on site such as a grocery store, drug store, or gas station. Regarding restaurants and sporting events, the court raised a concern that a “past OVI offender would be tempted to have a drink at such locations and then drive home. “ (Par. 23, relying on Weimer, supra.).

The court also pointed out the defendant’s high blood /alcohol level at the time of the stop (.213) which it held the trial court could consider for sentencing purposes even though the “high tiered BAC” charge was dismissed as part of a negotiated plea. (Par. 15, citations omitted.).

Improper early termination.

State v. Guadagno, 2024-Ohio-5235 (2d. Dist). Early termination of community control supervision was reversed. The defendant was placed on community control supervision for up to five years, with random drug screening and obtaining a drug assessment. Less than a month later the trial court terminated supervision. There was nothing in the record to show the defendant had completed the probation requirements. (Par. 8).

R.C. 2929.15(C) permits a court to grant early probation termination after a significant period of time when the defendant, fulfills the conditions of a sanction in an exemplary manner. (Par. 9). A trial court may only terminate community control within the statutory framework of R.C. 2929.15(C). (Par. 9), relying on  State v. Weeks, 2021-Ohio-3735, ¶ 13-14 (8th Dist.), State v. Ogle, 2017-Ohio-869, ¶ 10 (4th Dist.), and State v. Castillo, 2011-Ohio-1821, ¶ 26 (2d Dist.) (a trial court has no power to modify a sentence or terminate community control except under R.C. 2929.15(C). The appellate court found termination after one month of probation did not meet the statutory requirement of a significant period of time.

Revocation for new charges.

State v. Clark, 2024-Ohio-4237(3d. Dist.). Revocation of judicial release and imposing balance of prison term were affirmed. The grounds for revocation included: by (1) being charged with operating a vehicle under the influence (OVI), consumption of alcohol, and testing positive for methamphetamines.

For revocation of judicial release, similar to community control supervision/probation violation, a defendant is entitled to a preliminary and final hearing. (Par. 6). The purpose of the final revocation hearing is to give the defendant 'an opportunity to be heard and to show' that he either did not violate his conditions or that certain mitigating circumstances suggest that the violation does not warrant revocation. (Par. 6, citations omitted.). The appellate court found the trial court complied with all of the procedural safeguards, including notice of violations, a hearing, and an opportunity to respond to the charges. With the defendant’s admission of the violation the trial court did not abuse its discretion by imposing the balance of the incarceration term.

Sufficiency of the Explanation of Circumstances.

State v. Johnson, 2024-Ohio-5377 (1^st. Dist.). OVI conviction and order overruling motion to suppress were affirmed. The defendant turned left in front of an oncoming car, resulting in a three car collision. The officer at the scene initially did not notice any signs of impairment, but later smelled alcohol on the defendant’s breath, noticed some slurred words , and glassy eyes. The defendant was cited for OVI, driving under a suspended license, and improper turn. The defendant plead no contest to all three charges.

The court found there was probable cause for arrest for OVI based on (1) the defendant made an improper left turn into oncoming traffic, causing a three-car accident; (2) he exhibited an odor of alcohol on his person that became stronger as he spoke; (3) he slurred some words; (4) he admitted to consuming alcohol; (5) he was belligerent to the victims; and (6) he had watery eyes. (Par. 12). In arriving at this conclusion, the court noted the defendant exhibited impaired driving by committing a traffic infraction that caused a three-car accident.  (Par. 14, relying on State v. Bryant, 2010-Ohio-6009 (1st Dist.), finding the defendant's driving behavior, driving in reverse and going the wrong way on a one-way street was "more suggestive of impairment" than a minor traffic violation.

Although a no contest plea constitutes an admission of the truth of the facts alleged in the complaint, except for a minor misdemeanor offense, the judge is required to make a finding of guilty or not guilty from the explanation of the circumstances of the offense. R.C. 2937.07. In the present case the court found a statement that the defendant operated a vehicle under the influence of alcohol, which was based on a .134 blood/alcohol reading, supported all of the essential elements of the offense.

State/ City of Perrysburg v. Thompson, 2024-Ohio-5533 (6^th. Dist.). the conviction for amended charge of physical control under the influence was affirmed. The defendant was initially arrested for OVI and un refusing to submit to a test with an OVI conviction within the past ten years, both first degree misdemeanors. R.C. 4511.19(A)(1)(a) and 4511.19(A)(2) and failure to control arising out of a one car collision. For evidentiary reasons, the charges were amended to one count of physical control of the vehicle under the influence of alcohol. The defendant plead guilty to the amended charge.

On appeal the defendant asserted trial court erred in entering a finding of guilt without calling for an "explanation of circumstances," in violation of R.C. 2937.07.  Although the explanation of circumstances may be set out by either the judge or the prosecutor, the critical issue is whether there are sufficient facts in the record to support the conviction. (Par. 7). The explanation of circumstances may also be based on a colloquy between the court and the defendant. (Par. 8, citing State v. Holley, 2020-Ohio-5104 (2d. Dist.)).

In this case the appellate court found the trial court’s recitation of the charge which followed and contained the elements of the statute and the defendant’s agreement was sufficient for an explanation of circumstances. The court also found that the information provided by the prosecutor to the court as the basis for the amendment could be considered part of the explanation of circumstances. (Par. 9-10). The facts set out by the prosecutor, including the singe car collision, the defendant’s odor of alcohol, and the defendant’s concession that the amended charge was an alcohol related offense were sufficient to satisfy the element of under the influence. (Par. 13-14).

The court also distinguished the significance of the explanation of circumstances based on either a guilty or no contest plea. With a no contest plea the explanation of circumstances is a substantive right. A guilty plea, however, involves a lesser standard that may be waived by omission because the guilty plea removes the factual finding of guilt. (Par. 16).

Plea issues.

Knowing and voluntary waiver of rights.

State v. Jimenez, 2024-Ohio-5255 (3d. Dist.). The conviction for driving without a license was reversed. The defendant did not speak English, but entered a guilty plea with an interpreter. As a first degree misdemeanor, Criminal Rule 11(E) applies, requiring the trial court to explain the effect of the plea of guilty, no contest, and not guilty. Criminal Rule 11(E) also incorporates Criminal Rule 44, requiring the court to inform the defendant of the right to counsel, appointment of counsel, if applicable, and waiver of counsel on the record. See also, Crim.R. 5(A) and Crim R. 10, requiring waiver of counsel in open court and recorded. (Par. 7).

In this case the trial court explained to a group of defendants at the initial appearance of the right to counsel and appointment of counsel, if applicable. The defendant signed a written waiver form, written in Spanish, but the defendant was not explained the right to counsel to the defendant on an individual basis when the defendant entered his guilty plea. The appellate court found the written waiver form, by itself and without a dialogue between the court and the defendant, did not comply with the requirement that the waiver of counsel be made in open court. The appellate court noted the record did not show the defendant fully understood his right to counsel and that he was waiving that right. The court further noted that a voluntary and knowing waiver cannot be presumed from a silent record, but may be shown through the court's colloquy with the defendant."  (Par. 9,16, relying on State v. Brooke, 2007-Ohio-1533.).

Author’s note: In this case the appellate court found there was no evidence in the record to show the waiver form was signed in open court at the time of the plea. The court implied the better practice is for the defendant to sign the form in open court on the record at the time of the plea and have the judge taking the plea to sign the waiver form as well. (Par. 19). Alternatively, the judge acknowledges the waiver form with the defendant in court on the record when the guilty or no contest plea is entered.

Withdrawal of plea denied.

State v. Ibekie, 2024-Ohio-5576 (5^th. Dist.). An order denying motion to withdraw plea was affirmed. An officer stopped to check on the vehicle on the side of I-71 and notice two females in the car. The defendant was in the driver’s seat. Based on the defendant’s appearance, including glassy, bloodshot eyes and odor of alcohol from her breath, the officer requested the defendant to take field sobriety tests. From the results of the test, the defendant was arrested for OVI. The defendant submitted to the breath test with a .180 blood/alcohol level.

The defendant, with counsel, plead guilty to driving under the influence and the high tiered BAC charge dismissed. A month after final disposition of the case, the defendant appeared in court with new counsel to withdraw her plea. The motion to withdraw included the defendant’s affidavit and an affidavit of her new attorney who spoke to an unnamed female as the other person in the car who now claimed to be the driver at the time. The attorney’s affidavit was based on a conversation he had with the other, unnamed person who claimed she was the driver. The trial judge scheduled an evidentiary hearing on the motion, but the defendant relied solely on the affidavits without any additional witnesses. According to the affidavit, the other person asserted she was living in Florida and unavailable to testify in person.

Affirming the trial court’s order overruling the motion to withdraw, the appellate court noted the defendant’s burden of establishing the existence of manifest injustice under Criminal Rule 32.1. (Par. 16, citations omitted.). Regarding the affidavits, a court must accord due deference to a supporting affidavit but has discretion to assess the credibility of the affidavit. (Par. 28, citations omitted). Factors to assess the affidavit’s credibility include:

1) whether the judge reviewing the motion also presided at the plea hearing,

2) whether multiple affidavits contain nearly identical language or otherwise appear to have been drafted by the same person,

3) whether the affidavit contains or relies on hearsay,

4) whether the affiant is related to the defendant or otherwise interested in the success of his efforts,

5) whether the affidavit contradicts defense evidence,

6) whether the affidavit is contradicted by any other sworn statement of the affiant, and

7) whether the affidavit is internally inconsistent. (Par. 28, citations omitted.).

In the present case the judge reviewed the affidavits, as well as the audio recorded prior plea. Putting aside the hearsay nature of the attorney’s affidavit, the trial court concluded the statements in the affidavits were "incredible, self-serving, and unlikely the words of a lay person" lacking any evidentiary value. (Par. 29-30). Moreover, from the plea and subsequent motion hearing, the trial court had the opportunity to assess the defendant’s demeanor and credibility. The court also found the defendant’s statements in her affidavit contradicted her statements at the time she entered her plea to the OVI charge.

Miscellaneous Issues.

1. Criminal offense with accompanying OVI cannot be sealed.

State v. Pigg, 2024-Ohio-5466 (5^th. Dist.). Dismissed charge of improper handling of a firearm in a motor vehicle, arising out of OVI offense, was not eligible for sealing. The two charges were bifurcated to allow the defendant to participate in intervention in lieu conviction on the weapons charge. This charge was later dismissed upon successful completion of the program. The defendant was found guilty of the OVI charge by guilty plea.

With multiple offenses and different dispositions, R.C. 2953.61prohibits the sealing or expungment of a record of an offense if it is the result of or in connection with the same act as an OVI or physical control of a vehicle under the influence. (Par. 16). In the present case, the weapons charge stemmed from the same conduct as the defendant’s OVI, and therefore the weapons charge, although dismissed, could not be sealed.

2. Compliance with blood draw procedures are state, not constitutional issues.

Schubert v. Watson, No. 2:23-cv-4231, 2024 U. S. Dist. LEXIS 215526 (S.D. 2024). Habeas corpus denied. Compliance with blood taking procedure in OVI case is governed by state law and does not rise to the level of a constitutional issues. A failure to comply with state procedural law is not a violation of the Due Process Clause. The court noted that the issue was raised in state court, with a motion to suppress overruled by the trial court, and affirmed on appeal. State v. Schubert, 2021-Ohio-1478 (5th Dist.), reversed on other grounds, 2021-Ohio-2923.

3. Different elements and inconsistent verdicts.

State v. Tomic, 2024-Ohio-5537 (5^th. Dist.). Convictions for two counts of aggravated vehicular homicide under R.C. 29030.06 (A)(1)(a) and R.C. 2903.06(A)(2)(a) were affirmed.⁴ The defendant left with a friend after consuming three shots and three beers. Travelling eighty six miles an hour in a thirty five mile an hour zone, the defendant lost control of the car, left the roadway, traveled through several yards, struck a culvert and a telephone pole, spun into a curb, striking the curb, flipped the vehicle, and came to rest a few feet from a house. The driver was able to get out of the car, but the passenger was trapped inside and later died from is injuries. The defendant claimed the decedent was the driver, but the evidence showed the driver was wearing a seatbelt. From the decedent’s injuries, the evidence showed he was not wearing a seatbelt at the time.

Affirming the conviction, the appellate court found the defendant’s admission of alcohol consumption and video of the crash scene and other evidence about the crash were sufficient to support the vehicular homicide convictions. In addition, grossly excessive speed, which in this case was more than two and a half times the posted speed limit when he lost control, when combined with other factors, supported a finding of recklessness.  (Par. 44, citing State v. Skaggs, 2010-Ohio-302 (2nd Dist.).

The appellate court rejected the defendant’s assertion of inconsistent verdicts due to the not guilty OVI verdict and an OVI offense of driving under the influence as the proximate cause of the death. The court noted the defendant was charged with a violation of R.C. 4511.19(A)(2)(a), which required proof of operating the vehicle under the influence, refusing a chemical test, and a prior conviction within ten years. Driving under the influence and the OVI charge with a refusal and prior OVI conviction required proof of different elements. In the present case the defendant had initially agreed to a chemical test at the scene, but later declined the test at the police station.

The defendant also asserted he was entitled to a jury instruction for the lesser included charge of vehicular homicide. The misdemeanor offense is based on negligent, rather than reckless conduct. The court found the evidence did not support a finding the crash was caused by mere negligence, and therefore, the lesser included offense instruction was not applicable.

4. Driving privileges and condition of release.

State v. Kuhlwein, 2024-Ohio-5497 (5^th. Dist.). Order denying limited driving privileges was affirmed. The defendant was denied limited driving privileges on a lifetime license suspension after being released from prison by judicial release from convictions of aggravated vehicular homicide, drug possession, and OVI. As part of the judicial release, the defendant signed and consented to the conditions of release which included no driving privileges for the five year term of supervision. In addition to this express condition, the appellate court found the trial court’s denial of limited privileges based on the seriousness of the defendant’s offenses and the consequential loss of life was not an abuse of discretion.

Author’s Note. Judicial release is limited to felony convictions. R.C. 2929.20. For a misdemeanor conviction, a court may terminate an imposed jail sentence and may impose one or more community control sanctions. R.C. 2929.24(G).

5. Magistrate’s limitation in criminal cases.

State v. Wood, 2024-Ohio-5597 (2d. Dist.). The conviction for driving under OVI suspension was reversed for lack of speedy trial. The defendant was initially charged with driving under an OVI suspension on April 26, 2021. The charge was dismissed on June 2, 2021, but refiled, along with other traffic offenses on June 21, 2021. The defendant was found guilty of the charges at a jury trial held on April 8, 2022, almost a year after the charges were initially filed. The record shows delays by defense motions and appointment of counsel.

At the initial appearance the defendant asked to speak to the prosecutor and the court scheduled the case for a pretrial conference. The defendant was given a form that included a limited speedy trial time waiver and consent to be heard by a magistrate. The appellate court noted that although speedy trial time is tolled by the defendant’s request for a pretrial conference, the pretrial conference in this case was scheduled by the court without a request by the defendant.

The defendant filed a motion to suppress evidence, which was overruled by the magistrate on September 8, 2021. On October 18, 2021, the defendant filed a motion to dismiss, which was overruled by the court on March 25, 2022. The magistrate, however, had orally overruled the motion to dismiss without a hearing on two days after it was filed, but the order was not journalized. Although a pretrial motion will generally toll the speedy trial time, the appellate court found the delay was not properly justified or reasonable under the circumstances. (Par. 41, citations omitted.). The court noted a trial court does not have "unbridled discretion concerning the amount of time it takes to rule on a defense motion." State v. Martin, 56 Ohio St.2d 289, 297 (1978). (Par. 41). In this case the court found, based on the issues involved, the unreasonable delay for the pending motion to dismiss was not all attributable to the defendant. The court found that although the trial court made a good faith effort to move the case after the court became actively involved, the time for trial had already lapsed.

Use of magistrate in criminal cases.

Reviewing the magistrate procedures in this case the appellate court raised issues.

• By order of reference by the court, magistrate may "hear and decide" any pretrial motion in a misdemeanor case for which imprisonment is a possibility "upon the unanimous consent of the parties in writing or on the record in open court." Crim.R. 19(C)(1)(f). In this case:

  • the referral to the magistrate was included in the order for a pretrial conference, requiring the defendant to consent to the referral to have a pretrial conference.

  • There was no consent in the record by the prosecutor, as required for unanimous consent. (Par. 45).

• Oral ruling by magistrate on motion to dismiss did not comply with Crim.R. 19(D)(2)(a)(ii). "[a] magistrate's decision shall be in writing, identified as a magistrate's decision in the caption, signed by the magistrate, filed with the clerk, and served by the clerk on all parties or their attorneys no later than three days after the decision is filed."  (Par. 46).

• Magistrates may only enter pretrial orders without judicial approval that are necessary to regulate the proceedings and that are not dispositive of a claim or defense of a party. Crim.R. 19(D)(2)(a)(i), (Par. 48). The magistrate order overruling the motions to suppress and dismiss were dispositive.

• A magistrate's decision is "not effective unless adopted by the court." Crim.R. 19(D)(4)(a). The magistrate’s order in this case overruling the motion to dismiss was not submitted to the court for approval. (Par. 48).

2. Upcoming Education Opportunities

• January 30-31, February1, 2025, Winter Conference, 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.

• March 17-19, 2025, Drugged Driving, NJC, Indianapolis, Indianna. (Note: NHTSA has travel funds available for attendees.)

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

• June 16-19, 2025, Drugs in America Today; What Every Judge Needs to Know, NJC, Sioux Falls, South Dakota.

• July 21-23, 2025, Impaired Driving Case Essentials, NJC, Phoenix, Arizona.

• September 20-21, 2025, National Interdisciplinary Cannabis Symposium, Denver, Colorado.

Free NJC Traffic and other related Programs Online Courses

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.)

• Search & Seizure in Impaired Driving Adjudication, NJC, (self-study, 90-120 minutes), Register: https://www.judges.org/courses/search-seizure-in-impaired-driving-adjudication-a-self-study/

“But It’s Just Weed! Understanding the Effects of Cannabis Use on Justice-Involved Adults and Adolescents.” Dr. Kara Marciani, Moderator: Hon. Kate Huffman Link: https://www.americanbar.org/events-cle/ecd/ondemand/444312633/

Podcast

• New AllRise Standards of Justice Podcast episode, “Who belongs in treatment court?” Listen here: https://allrise.org/resources/podcasts-standards/

Need CLE Hours? The Ohio Judicial College has a number of free, online courses for CLE credit. Go to the Ohio Judicial College on the Supreme Court of Ohio’s website and then to OhioCourtEDU for a catalogue of available courses.