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Traffic Signals — December 2024

TRAFFIC SIGNALS NEWSLETTER

Dear Colleagues,January 8, 2025

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. Some cases also set out specific facts situations for determining reasonable suspicion and/or probable cause which may be of assistance when reviewing motions to suppress.

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, December, 2024.

The Progeny of Dunlap-Driver’s license checks after stop.

State v. McConico, 2024-Ohio-5657 (1^st. Dist.). An order overruling motion to suppress and conviction for cocaine possession discovered from a traffic stop were affirmed. The defendant was stopped driving a car which showed the owner of the vehicle had a suspended license. Although the owner was listed as female, the officer approached the car seeing the defendant/driver as male. The officer asked if the defendant had a valid license, which the defendant said yes, but he did not have his license with him. The officer ran the name, discovering that the defendant had given a false name and there was an outstanding warrant for the defendant. Once the defendant was taken into custody, the cocaine was discovered.

The defendant asserted once the officer saw the defendant was not the unlicensed owner of the vehicle, reasonable suspicion of criminal activity evaporated. The appellate court cited State v. Dunlap, 2024-Ohio-4821, which held that when an officer stops a car due to its registered owner being unlicensed, and subsequently sees that the driver is not the unlicensed registered owner, the officer may ask for the driver's license. (Par. 15). Although the court in MCConico stated as a plurality decision, Dunlap was not binding authority, the court followed the decision and affirmed the conviction. (Par. 29-30).

State v .Thomas, 2024-Ohio-5872 (11^th. Dist.). Order overruling motion to suppress and convictions for OVI, drug possession, possession of cocaine, and possession of a fentanyl related compound were affirmed. The defendant was stopped due to a license place cover that concealed the plate number. Walking up to the car, the officer could see the plate number through a plastic cover about fifteen feet away. The officer went to the car to check the driver’s license status and “immediately” smelled raw marijuana when the defendant rolled down the window. The defendant was the only person in the car. The officer testified to the defendant’s signs of impairment, including pinpoint pupils and sweating. The defendant produced a state identification card as his license was suspended.

Regarding the validity of the stop, the court held the officer had a reasonable basis based on a traffic violation. R.C. 4503.21(A) prohibits the license plate from being “covered by any material that obstructs its visibility." Although the defendant argued the license plate cover did not obscure the plate, the officer had a reasonable belief to stop the car because he could not see the plate markings until he approached the car on foot. The court noted by the time the officer got close enough to the defendant’s car, the stop was already made. (Par. 14). In addition, the issue is not whether the defendant violated the traffic law, but rather, whether the officer had probable cause to believe that he had. (Par. 14, relying on . Bowling Green v. Godwin, 2006-Ohio-3563.)

The defendant also argued that once the officer was able to see the plate marking, the basis for stopping the car ceased to exist and as such the stop should have been terminated. The court, relying on State v. Dunlap, 2024-Ohio-4821, noted that, after initiating a lawful stop, an officer may approach the driver of the vehicle even when there are no longer grounds for suspicion. (Par. 17,19). As the Court noted in Rodriguez v. United States, 575 U.S. 348 (2015), once a police officer has lawfully initiated a traffic stop, the mission of the stop includes asking the driver for a driver's license “ The officer was not required to terminate the stop immediately upon being able to read the license plate and the defendant’s continued detention was justified by these additional circumstances. (Par. 21).

Implied consent for blood draw

State v. Linek, 2024-Ohio-6127 (4^th. Dist.). Conviction for aggravated vehicular homicide was affirmed but reversed on restitution order and order of solitary confinement on the anniversary of the crash. This case arose out of a collision in which a small car driven by the defendant drove through a stop sign and crashed into a dump truck. The dump truck did not have a stop sign. The defendant was unconscious when removed from the car and taken to the hospital for medical treatment. The passenger died from the collision. Searching the car for identification, an officer at the scene found a Narcan container. Another officer knew the defendant from prior drug incidents. The officer requested a blood draw for the defendant.

An officer went to the hospital and read the 2255 form to the defendant who was still unconscious and ordered the blood draw. The blood results showed the presence of amphetamine, THC, methamphetamine, and midazolam. After a hearing, the motion to suppress was overruled. The defendant entered a no contest plea to an amended vehicular homicide charge (F-2) and the OVI charge was dismissed.

On appeal the defendant asserted there was not probable cause to show he was driving under the influence to justify a warrantless blood draw under the implied consent statute. The court noted a warrantless blood draw is a search within the meaning of the Fourth Amendment. (Par. 17). Under R.C.4511.191, a driver implicitly consents to a search as part of the privilege drive on public roads in Ohio of a chemical test to determine the amount of intoxicating substances in the driver's body upon the driver's arrest for DUI. State v. Hoover, 2009-Ohio-4993, ¶ 14 (Par. 18). The implied consent statute, however, does not create actual consent for all searches. Rather the officer must still show 1) exigent circumstances and 2) probable cause that the defendant was driving under the influence. (Par. 20). Both factors must be established for a blood sample taken over a defendant’s objection and without consent to be admissible as evidence. (Citation omitted.).

In the present case the court found probable cause was established by 1) unused Narcan in the vehicle, 2) the officers knew that appellant had a history of drug use, 3) the collision occurred because the defendant drove his vehicle through a clearly visible stop sign and into the path of a dump truck, and 4) the accident left appellant injured and unconscious, and his passenger dead. (Par. 23).

The court noted that one factor alone, such as Narcan in the car, was not sufficient to establish probable cause, but adds to the totality of the circumstances. In addition to the Narcan, the court noted, “Individuals in full possession of their faculties usually do not ignore stop signs and drive their vehicles into the path of a dump truck.” (Par. 23). Moreover, an officer does not have to witness actual driving impaired if all of the facts and circumstances show the defendant drove under the influence. (Par. 25).

Regarding exigent circumstances, police are generally permitted to conduct a search without a warrant to prevent the imminent destruction of evidence. Missouri v. McNeely, 569 U.S. 141, 148-150 (2013). Exigency exists when 1) BAC evidence is dissipating, and 2) some other factor creates pressing health, safety, or law enforcement needs that would take priority over a warrant application. Mitchell v. Wisconsin, 588 U.S. 840, 857 (2019). (Par. 28). The court found because the defendant was unconscious, a breath test was not available and the risk of dissipating evidence, and the statutory time limit to obtain a bodily sample to determine the presence of drugs in the defendant supported a finding of exigent circumstances.

Restitution.

The trial court awarded funeral expenses based on the prosecutor’s statement as part of restitution. Funeral expenses are permitted as part of restitution under R.C. 2929.01(L). Unless the amount is stipulated by the parties, a hearing is required. In the present case the there was neither a stipulation nor a hearing and the funeral bill was not admitted into evidence. The only basis for the funeral expense was the prosecutor’s statement which the court noted was not evidence. (Par. 34, citation omitted.). On review, the appellate court held there was no evidence to support the restitution finding and remanded the case to the trial court on this issue for a hearing on the amount of restitution.

Odor of marijuana

State v. Rodriguez, 2024-Ohio-6085 (5^th. Dist.). An order overruling motion to suppress and conviction for aggravated trafficking in drugs were affirmed. The defendant pulled out of a gas station at 4:00 a.m. and was stopped for driving without a front headlight on the driver’s side. When the window was rolled down the officer smelled raw marijuana. The passenger in the car told the officer she had smoked marijuana. As the defendant/driver got out of the car the officer saw him throw a bag to the berm which contained white pills, later identified as Percocet. After a search of the car marijuana was found in the center console and Oxycontin and Methamphetamine in the trunk.

Validity of the stop.

The defendant argued both front headlights were on when stopped by the officer. The evidence video showed, however, that while both high beam headlights worked, the low beam did not work for the driver’s side. Evidence was also presented from the gas station video that only the passenger headlight was on when the defendant entered the road from the gas station. The court noted that the lack of a traffic citation was not determinative because the officer did not have to establish guilt beyond a reasonable doubt, only a reasonable, articulable suspension of a traffic violation. (Par. 34).

Odor of marijuana.

The defendant argued “since medical marijuana and hemp have become legal and because it looks and smells the same as illegal marijuana, the distinctive odor of raw marijuana has become unusable as an identifier to rely on to support probable cause to search a vehicle without a warrant.” (Par. 37). Citing State v. Moore, 2000-Ohio-10, the court found the smell of marijuana alone by a person qualified to recognize the odor was sufficient to establish probable cause to search a motor vehicle. (Par. 42). In the present case the court noted “The fact that illegal marijuana and legal forms of hemp have the same odor is irrelevant so long as some forms of marijuana remain illegal.” (Par. 42). The court also cited other decisions that held the smell of marijuana as sufficient probable cause even though some forms of marijuana are legal. See, State v. Wright, 2024-Ohio-1763, (1st Dist.); State v. Johnson, 2022-Ohio-2773, ¶ 33, 35 (8th Dist.). (Par. 43). The court in Rodriguez also noted that the search was not based solely on the smell of marijuana, but also included the bag of Percocet the defendant tried to conceal.

State v. Boykins, 2024-Ohio-5898 (4^th. Dist.). Convictions for possession of a fentanyl-related compound and possession of heroin were affirmed. After stopping the defendant for a traffic violation, the officer smelled the odor of raw marijuana coming from the vehicle. The defendant/driver told the officer she had marijuana, as well as a firearm and permit, in the console. After removing the defendant from the car, the officer searched the car and discovered multiple small bags of heroin in a cookie box in the defendant’s purse.

The issue on appeal was ineffective assistance of counsel for failure to file a motion to suppress. The court noted when asserting ineffective counsel for failing to file a motion to suppress, a defendant must show there was a basis to suppress the evidence. (Par. 13, citations omitted.). Addressing the suppression issue, the court noted that when the vehicle occupant informs the officer of illegal drugs it “independently provides an officer with additional probable cause to believe that the vehicle contains evidence of contraband."  State v. Donaldson, 2019-Ohio-232, ¶ 29 (6th Dist.). (Par. 15). This includes opening sealed envelopes or other containers located inside vehicle when officer possessed probable cause to search vehicle. State v. Vega, 2018-Ohio-4002. (Par. 16).

When a defendant volunteers the location of the contraband in a vehicle it does not preempt the officer from searching other areas of the vehicle that may contain contraband.  A person stopped by officers cannot preempt a search and remove probable cause by volunteering some contraband to the officer.  State v. Donaldson, at ¶ 27. (Par. 18).

Rejecting ineffective assistance of counsel, the court held the officer had probable cause to search the car after smelling and being informed of the presence of marijuana.¹ When the record contains no evidence which would justify the filing of a motion to suppress, the defendant has not met the burden of proving that the attorney violated an essential duty by failing to file the motion. (Par. 13, citations omitted.).

Author’s note: Although ineffective assistance of counsel is usually raised as an appellate issue, it may also be grounds to vacate a conviction and withdraw a no contest or guilty plea. Crim. R. 32.1.

Sentencing factors

1. Trial court discretion and recommended sentence.

State v. Davis, 2024-Ohio-5688 (1^st. Dist.). The four year prison sentence imposed by the court on vehicular assault conviction was affirmed.² The defendant entered a guilty plea to aggravated vehicular assault with the remaining two OVI counts and the vehicular assault count being dismissed. As part of the plea the parties agreed to a one year prison term. Due to the defendant’s conduct between the time of the plea and sentencing, including a social media video which portrayed her drinking and smoking marijuana in violation of her pretrial release conditions and lack of remorse for the incident that left the victim a quadriplegic after she hit him, the court imposed a four year sentence.

Upholding the greater sentence, the appellate court noted the trial court is not bound by a recommended sentence in a plea agreement and may depart from the agreed sentence when the defendant is forewarned by the court that a greater sentence could be imposed, relying on State v. Shaw, 2023-Ohio-3230 (1^st. Dist) and State v. Elliott, 2021-Ohio-424. (Par. 17). In the present case the court advised the defendant before accepting her guilty plea that he was not bound by the proposed sentence. The court specifically advised the defendant that either more or less time could be imposed, which she acknowledged. The appellate court held the sentence was within the range for a third degree felony and the trial court properly considered the video and lack of remorse and insight as sentencing factors under R.C. 2929.12(D).

State v. Lyles, 2024-Ohio-5834 (1^st. Dist.). Conviction for aggravated vehicular assault was affirmed. The defendant and prosecutor entered into a plea agreement with a recommended two year prison term. At the time of the plea the trial court went over the terms of the agreement including dismissal of related charges and recommended prison sentence. The defendant was informed the trial court was not bound by the parties’ recommended sentence, which the defendant acknowledged. The trial court imposed a four year prison sentence as opposed to the two year term agreed to by the parties.³

On appeal the court noted a trial court is not bound by a recommended sentence agreed to by the prosecution and the defendant, but when the recommended sentence is the basis for the inducement to plea, the trial court must inform the defendant of the possibility of imposing a greater sentence. (Par. 9, citations omitted.). The court on appeal also noted the difference between a recommended sentence and a stipulated sentence accepted by the court.

The trial court’s colloquy with the defendant and in the absence of a stipulation or agreement of sentence by the court, the defendant did not have a reasonable expectation that the trial court would automatically follow the sentence recommendation. Although the trial court should provide the defendant an opportunity to withdraw a plea if the sentence exceeds the recommended sentence, in this case the defendant did not raise any objection to the increased sentence at the sentencing hearing. Moreover, the trial court gave the defendant sufficient time to consider the potential sentence before entering the guilty plea.

2. Claim of disproportionate sentence.

State v. Yuran, 2024-Ohio-5655 (11^th. Dist.). Conviction for aggravated vehicular homicide and OVI were affirmed. The defendant entered guilty pleas to aggravated vehicular homicide (third degree felony) and OVI (first degree misdemeanor) with dismissal of the remaining OVI charge. The defendant received a sentence of 7-10.5 years on the felony charge and 180 days, served concurrently on the OVI charge. On appeal the court held the defendant’s sentence on the aggravated vehicular homicide count fell within the statutory range for the offense. The court noted that although other defendants may have received a lesser term of incarceration, the scope of review is whether the trial court complied with the statutory purposes and principles for sentencing.⁴ In this case the defendant was involved in a fatal collision after failing to stop at an intersection while intoxicated. The defendant also admitted he consumed alcohol, failed field sobriety tests, and had a blood alcohol content over the legal limit.

State v. Hammons, 2024-Ohio-6128 (6^th. Dist.). Convictions and sentence for two counts of aggravated vehicular homicide, two counts of aggravated vehicular assault, and one count of OVI were affirmed. The defendant struck a vehicle from behind, sending the other vehicle into the oncoming lane of traffic. Five seconds before the crash the defendant was going 109 miles per hour, slowing down to 90 mph one second before the crash and 79 mph at impact. The defendant admitted she had been drinking and tested 0.16 whole blood alcohol level. The alcohol level was consistent with impairment, showing delayed reaction time.

The defendant was sentenced consecutively on each count for an aggregate 20 to 24 years in prison. The defendant appealed the sentence on the grounds it was disproportionate because it was her first OVI conviction. She also argued the harm was not “great or unusual” as required by R.C. 2920.14(C)(4)(a) to impose consecutive sentences, because the harm was within the meaning of the aggravated vehicular homicide and assault statutes. The appellate court held that while the harm may not be unusual in light of the vehicular homicide and assault statues, the result in this case was great based on the widespread, long lasting harm to the injured and the families of the survivors. (Par. 24). The sentence was affirmed but remanded to the trial court to correct inconsistencies in the judgment entry.⁵

3. Place of incarceration.

State v. Snowden, 2024-Ohio-5649 (11^th. Dist.). Felony OVI sentence was reversed for resentencing. The defendant was sentence to sixty days in the local jail on third degree felony OVI conviction. The court held that a conviction under R.C. 4511.19(G)(1)(e) required a mandatory minimum sixty days in prison. The court distinguished between a fourth degree OVI felony under, R.C. 4511.19(G)(1)(d), which provides the trial court with discretion to impose a minimum sixty days in jail of either local incarceration or prison, this option does not apply to a third degree felony OVI offense.

Conflicting issues with common pleas and municipal courts.

1. Speedy trial issues.

State v. Nelson, 2024-Ohio-5750 (12^th. Dist.). Convictions for vehicular assault and failure to stop after an accident were affirmed. This case involved a construction worker being struck by a truck in a construction zone after the defendant/driver was not permitted to go forward, but instead told to turn around. Misdemeanor charges of reckless operation and failure to stop were initially filed in the municipal court, but later dismissed when the extent of the victim’s injuries were discovered from the medical records and the defendant was indicted on felony charges. The defendant was found guilty of both charges in a bench trial.

Failure to stop.

The defendant raised the issue of duress, claiming he fled the scene after the collision out of fear of construction workers chasing him. Duress is an affirmative defense which does not negate an element of the offense, but instead provides the legal justification for having committed the offense. (Par. 27, citations omitted.). As an affirmative defense, the defendant admits his/her involvement in the offense charged.⁶ In addition, the defendant must also establish the defendant was without fault in creating the situation. (Par. 18, citations omitted.). In the present case the court found as an alternative to leaving the scene, the defendant could have by locked himself in the truck, rolled up the windows, and made a call for help.

Speedy trial issues.

The issue concerned the time the case was pending in the municipal court prior to dismissal and indictment on the felony charges. The court found the defendant was not entitled to any time credit from the municipal court case against the statutory speedy-trial time for the two felony charges because the medical records were not available to the state at the time it filed the municipal court case. (Par. 42, relying on State v. Baker, 1997-Ohio-229). The court distinguished State v. Bonarrigo, 62 Ohio St. 7(1980), which would apply the municipal court time to the subsequent felony when the evidence for the felony charge was available to the state when the misdemeanor charges were filed.

2. Double jeopardy issues.

State v. Becker, 2024-Ohio-5702 (2d. Dist.) An order overruling motion to dismiss felony OVI charge on double jeopardy grounds was reversed. The defendant was charged with OVI in Municipal Court. While the misdemeanor charge was pending, the officer discovered a prior Iowa OVI conviction and charged the defendant with felony OVI in the municipal court. Four days later the defendant was indicted on the felony OVI charge in common pleas court.

The felony charge in the municipal court was dismissed but the misdemeanor OVI charge remined pending in the municipal court. The defendant entered a not guilty plea to the felony OVI charge in common pleas court and a week later entered a guilty plea to the misdemeanor OVI charge in the municipal court. A motion to dismiss the felony OVI charge on double jeopardy grounds was overruled by the common pleas court, asserting the defendant was using double jeopardy as sword instead of a shield, relying on State v. Gonzalez, 112 Ohio App.3d 19 (9th Dist. 1996. (Par. 7).The trial court noted the defendant was attempting to manipulate the outcome of a felony prosecution by pleading to the misdemeanor offense in the municipal court.

There is no dispute that double jeopardy applied to the misdemeanor OVI conviction. The issue was whether the defendant’s conduct was an exception to the double jeopardy prohibition. On appeal the court distinguished the decision in Gonzalez, in which the defendant stipulated to entering no contest plea to a misdemeanor charge of child endangering for the express purpose to avoid the pending felony charge.

The court in Becker also referred to State v. Goodman, 2002-Ohio-818 (9th Dist.). In Goodman the defendant entered into a no contest plea of a misdemeanor domestic violence charge. After the plea but before sentencing in the municipal court it was discovered that the defendant had a prior domestic violence conviction. The municipal prosecutor moved to dismiss the misdemeanor charge to proceed with a new felony domestic violence offense. On appeal the court held that jeopardy attached in the municipal court when the defendant entered a no contest plea, even though he had not been sentenced. (Par. 30-31).

The court in Becker noted the defendant did not create the dual, overlapping OVI charges, giving the defendant an opportunity to plead guilty to one charge in the hopes to avoid a charge with a greater penalty. (Par. 34). Rather, the court noted the county and city prosecutors failed to communicate with each other and allowed the prosecution to proceed in separate courts on similar charges. (Par. 36-37). The court further noted the situation could have been avoided by the dismissal of the misdemeanor OVI charges in the municipal court to permit the felony prosecution to proceed. (Par. 34). Quoting State v. Knaff, 128 Ohio App.3d 90 (1^st Dist. 1998),

Here, we have at least two judges, two prosecutors, two court reporters, and two sets of bailiffs, clerks and other supernumeraries involved in needless-and in this case counterproductive-duplication of effort, the upshot of which is this appeal, involving another set of judges, lawyers, clerks, etc., to determine the legal import of this procedure. We have enough criminals, and enough cases, without the added problems created by this type of bifurcation of charges. 128 Ohio App. 3d at 95.

Traffic violation as basis for stop.

1. Tinted windows

State v. Flickinger, 2024-Ohio-5659 (1^st. Dist.). An order overruling motion to suppress and conviction for cocaine possession discovered from a traffic stop were affirmed. The defendant was stopped for driving with tinted windows and windshield. The officer stated the tint was heavy enough that he could not tell whether the driver of the vehicle was male or female. Once pulled over, the defendant/driver admitted her driver’s license was suspended. A small amount of cocaine was discovered during the course of the stop.

The defendant did not dispute illegal window tint as a valid traffic stop, but claimed lack of evidence to show her windows were actually illegally tinted. The appellate court noted, however, when reviewing the propriety of a traffic stop, the issue is what facts the officer knew at the time of the stop, relying on Dayton v. Erickson, 76 Ohio St.3d 31996- Ohio 431. (Par. 17). The court noted that although the defendant’s argument for suppression was based on the validity of the traffic offense, whether the driver is found guilty of the underlying traffic offense is not determinative of whether police had reasonable suspicion to conduct a traffic stop. (Par. 18).

2. License plate visibility.

State v. Gaither, 2024-Ohio-5777 (7^th. Dist.). An order overruling a motion to suppress and conviction for possession and trafficking cocaine were affirmed. The defendant was driving a car with a temporary license tag fixed to the car by one top bolt. As the defendant drove off the exit ramp the tag flew up and was upside down, making it unreadable to the police car behind him. The detective making the traffic stop also had a drug dog with him. Within two minutes of the stop the officer deployed the dog who sniffed out the drugs in the car.

Citing Dayton v. Erickson, 76 Ohio St.3d 3 (1996), the court noted a traffic stop for a minor traffic offense is reasonable under the Fourth Amendment "even if the officer had some ulterior motive for making the stop, such as a suspicion that the violator was engaging in more nefarious criminal activity." (Par. 7, Syllabus of the Court). R.C. 4503.182(A)(3) requires a driver to display the temporary motor vehicle license registration in plain view from the rear of the vehicle. Although the defendant argued that it was only temporarily obscured and fell back into place after the turn, the court noted the tag was not in plain view as required by the statute when the defendant was on the exit ramp. The court analogized a traffic stop in which the driver tells the officer "I was speeding, but not when you stopped me," (Par. 19). Thus, although the officer could read the tag after the stop, it did not excuse the lack of plain view when the defendant was driving.

The defendant also argued that the tag was in plain view at all times, just not capable of being read when it flipped over. The court noted however, that the intent of the statute was to require that license plates be visible to law enforcement personnel and others who may have reason to note the number for identification purposes. (Par. 13, relying on State v. Fredo, 2012-Ohio-1496, (7th Dist.), quoting Lakewood v. Shelton, 2011-Ohio-4408 (8th Dist.).

3. Insufficient evidence for probable cause.

1. Evidence observed before arrest.

State v. Harris, 2024-Ohio-5947 (2d. Dist.). An order granting motion to suppress in an OVI case was affirmed. The defendant was charged with two fourth degree felony OVI offenses. (Three priors in ten years and three or four priors in ten years; test refusal). The defendant was stopped at 2:30 a.m. after going over a speedbump at a “rough speed” and driving without headlights. At the stop the officer testified the defendant had glossy eyes. The defendant produced her identification and declined to perform field sobriety tests. The officer handcuffed the driver and put her into the back of the police car. A backup officer testified once in the car he smelled an odor of an alcoholic beverage. The defendant was read the 2255 form in the police car.

On the motion to suppress, the appellate court noted that probable cause, not a reasonable suspicion was needed for an arrest. (Par. 21). In the present case the court found there was insufficient evidence of probable cause when the defendant was placed under arrest. There was no sign of erratic driving except when the defendant swerved out of the way of a truck parked in her lane, which the officer testified he also swerved into the other lane for the same reason. (Par. 25). The video did not show her losing her balance or stumbling after she exited her vehicle. The initial officer did not smell alcohol when the defendant was placed under arrest. (Par. 26). Nor did he ask any predicate questions about consumption of alcohol or other substances to determine if the defendant was under the influence at the time of the stop. (Par. 25). Although the officer in the police car testified he smelled alcohol from the defendant’s breath when he read her the 2255form, this occurred after she was arrested. From the officer’s observations prior to the arrest, the court held it did not rise to the level of probable cause for driving under the influence.⁷

B) Seatbelt violation

State v. Smith, 2024-Ohio-6097 (9^th. Dist.). Conviction for aggravated drug possession discovered from a passenger seatbelt violation was reversed. After the driver was pulled over, the officer cited the defendant/passenger for not wearing his seatbelt. The defendant gave his name to the officer, but refused to provide his social security number, date of birth, or any other information. The defendant was removed from the car and after a pat down, the officer found a baggie containing methamphetamine in the pocket of his pants. The defendant filed a motion to suppress asserting that the seatbelt violation was not an arrestable offense. The evidence presented at the suppression hearing, by stipulation of the parties, was the body camera recordings from the two officers at the scene. (Par. 9). The trial court overruled the motion to suppress on the grounds of failure to provide identification with a minor misdemeanor offense. (Par. 13).

As a general rule an officer cannot arrest a person for a minor misdemeanor, but R.C. 2935.26(A) provides exceptions to make an arrest in the commission of a minor misdemeanor when the person:

1) requires medical care or is unable to provide for his own safety,

2) cannot or will not offer satisfactory evidence of his identity, or

3) refuses to sign the citation.

On appeal, the court held there was insufficient evidence from the two video recordings to show the defendant was not wearing a seatbelt at the time of the stop. The appellate court noted it was limited to review of the evidence presented at the suppression hearing, which did not provide any evidence that the defendant not wearing his seatbelt while the car was in motion. (Par. 24). Limited solely to the videos, without any live testimony from either officer in the absence of proof of the commission of any offense, the order overruling the motion to suppress was reversed and the case was remanded to the trial court.

Plea issues

1. Withdrawal of no contest plea.

State v. McWhorter, 2024-Ohio-5753 (12^th. Dist.). The denial of motion to withdraw guilty plea was affirmed. The defendant was charged with being in physical control of a vehicle under the influence from an incident on October 19, 2023. While that charge was pending the defendant was later charged with OVI from a separate incident on November 27, 2023. The defendant subsequently entered guilty pleas to both charges. While the defendant was awaiting sentencing on these misdemeanor charges, he was indicted for felony drug possession from illegal drugs recovered from the two incidents. The defendant sought to withdraw his guilty pleas, asserting he was not aware of possible other charges from the two incidents.

Although Criminal Rule 32.1 defendant’s ability to withdraw a presentence guilty plea should be freely and liberally granted, it is not an absolute right. (Par. 8, citations omitted.). The trial court is required to conduct a hearing to determine if there is a reasonable and legitimate basis for the withdrawal of the plea. (Par. 8, relying on State v. Newton, 2015-Ohio-2319 (12^th. Dist.). Factors for the trial court to consider include:

1) whether the defendant was represented by highly competent counsel;

2) whether the defendant was afforded a complete Crim.R. 11 hearing before entering the plea;

3) whether the trial court conducted a full and impartial hearing on the defendant's motion to withdraw the plea;

4) whether the trial court gave full and fair consideration to the motion;

5) whether the motion was made within a reasonable time;

6) whether the motion set out specific reasons for the withdrawal;

7) whether the defendant understood the nature of the charges and the possible penalties;

8) whether the defendant was possibly not guilty of the charges or had a complete defense to the charges; and

9) whether the state would have been prejudiced by the withdrawal.

In the present case the court noted although some of the factors applied to the defendant, others did not. No single factor is conclusive in determining whether a plea should be allowed to be withdrawn. (Par. 12, relying on State v. Valdez, 2024-Ohio-3357 (12^th. Dist.)).

The defendant also argued that if the pleas were withdrawn, the traffic offense could be merged with the drug offenses in the common pleas court. The court of appeals noted, however, that the two alcohol related traffic offenses with not allied offenses with the drug charges and would not be merged as a matter of law. The court also noted the defendant was aware at the time of his guilty plea to the misdemeanor offenses that felony charges may be brought against him. (Par. 14). The appellate court also rejected the defendant’s argument that the misdemeanor sentence was improperly harsher than the felony drug sentence as the misdemeanor sentence was imposed before the felony sentence was imposed and had no bearing on whether the trial court abused its discretion by denying his presentence motion to withdraw his plea. (Par. 10).

2. Noncompliance and non-prejudicial

State v. Cancilla, 2024-Ohio-5870 (11^th. Dist.). OVI conviction affirmed. The appellate court upheld a two year license suspension, as part of the sentence, was within the statutory range for the OVI offense, even though the prosecutor recommended the minimum one year suspension. The defendant had a CDL and the trial court stated the defendant could be eligible for limited driving privileges with proof of financial responsibility.

Regarding the defendant’s no contest plea, the trial court did not inform the defendant at the time of the plea that the effect of the plea or admission could not be used against the defendant in any subsequent civil or criminal proceeding. Traf. R. 10(B)(2) and Crim R. 11(B)(2). (Par. 16). On appeal the court held the omission was nonconstitutional in nature and would not be grounds to invalidate the plea unless the defendant could show prejudice from the omission. (Par. 16, relying on State v. Howell, 2017-Ohio-2927 (7^th. Dist.)). In the absence of any showing of prejudice, the plea and conviction were upheld.

Failure to comply offenses.

State v. Moore, 2024-Ohio-6050 (2d. Dist.). Conviction for failure to comply with an order or signal of a police officer was affirmed. The officer recognized the defendant’s car from an earlier report of domestic violence and aggravated menacing. As the officer pulled up to the defendant at a gas station, the defendant put the car in reverse to drive away but got stuck in a snow drift. The officer approached the car as the defendant tried to get away. The officer punctured three tires to stop the defendant. The defendant refused to get out of the car and kept reaching down out of sight. The officer standing outside the car drew his weapon for safety. Eventually, the defendant was able to fee the car from the snow drift and drive away at high speed. The officers pursued but broke off the chase due to bad weather. As they were doing so, the officers saw the defendant turn into an alley. The defendant had left the car and was running away on foot when stopped by the officers. The defendant threw snow at the officers and was eventually arrested. Most of the events were captured on video.

The defendant asserted that he felt threatened by the officers due to a text message from his girlfriend that a different police officer who was not at the scene had threatened him. The defendant claimed he fled in self-defense, necessity, and duress, but the trial court did not instruct the jury on these affirmative defenses. The defendant was found guilty by a jury trial.

On appeal the defendant reasserted these defenses by way of ineffective assistance of counsel. The defense of necessity excuses or justifies conduct which is otherwise prohibited by law. (Par. 48). For the affirmative defense of duress, the defendant must subjectively believe that he is being threatened with imminent death or serious bodily harm if he does not commit the crime, and that belief must be objectively reasonable based on the evidence. (Par. 49, citation omitted).

In the present case the court found there were no threats by the officers at the scene to cause harm to the defendant. Although the officers drew their weapons, it was a defensive move after the defendant refused to get out of the car and kept lowering his hands down out of sight of the officers. While the defendant claimed another officer had threatened the defendant due to that officer’s relationship with the defendant’s girlfriend, no evidence was presented to support this contention. The text message sent by the defendant’s girlfriend was over a month old and no proof of any immediate threat. Therefore, the court found there was insufficient evidence to support the affirmative defense instruction.

State v. Hinds, 2024-Ohio-6042 (1^st. Dist.). Conviction for failure to comply with the order or signal of a police officer was affirmed. The defendant drove by going around a marked police cruiser when the road was closed after she had been signaled to not go in that direction and almost struck two officers putting out flares for traffic control. The defendant plead no contest and was found guilty after the prosecutor read the summary of the traffic citation on the record to the court.

The defendant argued on appeal that the explanation of circumstances required under R.C. 2937.07 failed to show she acted recklessly. Although R.C. 2921.331(A) does not set out a specific mens rea, the court held that under R.C. 2901.21(C)(1), reckless is the appropriate mental state for this offense. (Par. 11). The court listed other appellate districts that have also applied recklessness to the failure to comply offense. (Par. 12).

Regarding the explanation of circumstances, the court noted the issue is not whether there is evidence to support a conviction following a no contest plea, but whether the explanation of circumstances contains sufficient information to support all of the elements of the charge. (Par. 10, citations omitted.). In the present case the court found the defendant knew that she had been given an order and she failed to comply, which satisfied the element of recklessness.

Miscellaneous.

1. Driving too slowly.

State v. Rodriguez, 2024-Ohio-5832 (1^st. Dist). Conviction for slow speed on an electric scooter was reversed. The officer pulled alongside of the defendant who was travelling on her scooter at a rate of 15 mph on a 35mph roadway. The defendant drove near the curb where practical. The record shows some confusion between the officer and the defendant as a native Spanish speaker. After the exchange with the officer the defendant was cited for a slow speed violation.

R.C. 4511.22(A) prohibits unreasonably slow speed that impedes or blocks “the normal and reasonable movement of traffic, except when stopping or reduced speed is necessary for safe operation or to comply with law.” The court noted there were two parts to this offense; 1) unreasonably slow speed and 2) impeding or blocking traffic. The court held, from the evidence in the record including the police video, that although the defendant was travelling at a slow rate of speed, she was not impeding traffic. The appellate court specifically noted the defendant travelled near the curb, so any car could pass her. Based on the evidence, the conviction was reversed.⁸

2) Cell phone use.

State v. Taylor, 2024-Ohio-5956 (5^th. Dist.). Conviction for cellphone use while driving was affirmed. The defendant drove by a parked police car while holding a cell phone and using his thumbs to make entries into the phone. The defendant was stopped and cited for using a cellphone while driving in violation of R.C. 4511.204. At a subsequent bench trial the defendant did not dispute the use of the cellphone while driving, but claimed the statute was unconstitutional on equal protection grounds because R.C. 4511.204 provides exceptions to first responders and utility workers. The defendant was found guilty and fined $25.00.

In rejecting the defendant’s argument on appeal, the court held that the thirteen exceptions to R.C. 4511.204 are affirmative defenses, not statutory exclusions. (Par. 6, citing State v. Havens, 2024-Ohio-2204, (5th Dist.). As such, all drivers are treated equally under the definition of the offense and certain people defined by occupation or emergency situations, may avoid liability by showing they fit into one of the thirteen exceptions when using the cell phone. Moreover, the exception to the use of cellphone while driving is not limited to any classes and applies to any driver in an emergency situation to contact law enforcement agency, hospital or health care provider, fire department, or other similar emergency agency or entity. R.C. 4511.204(B)(1). (Par. 6).

Dealing with the merits of the defendant’s assertion, the court held there was a rational basis for the operation of R.C. 4511.204 because

1. the State has an interest in preventing accidents caused by drivers who are distracted by use of their cell phones, and

2. allowing first responders and utility workers to use their phone while driving in an emergency situation exceeds the State’s general interest to prevent distracted driving. (Par. 11).

Upon finding R.C. 4511.204 constitutional on equal protection grounds, the conviction was affirmed.

3. Sovereign citizen and right to travel.

State v. Smith, 2024-Ohio-5641 (6^th. Dist.). A sovereign citizen’s conviction for obstruction of official business, failure to disclose personal information, failure to display driver's license, and failure to display license plate were affirmed. The defendant was stopped for driving with a handmade license plate which read “Private” and “United States American Republic.” After being stopped, the defendant refused to provide his name, date of birth, address, or a driver’s license.

The defendant argued he had an inherent right to travel that could not be impeded by state laws. Affirming the convictions, the court noted driving is a privilege in Ohio and not a right. Also, the state can regulate the exercise of the privilege by enacting laws.  (Par. 17, citations omitted.). The court distinguished between a right to travel and the ability to drive.

Driving a motor vehicle on a public roadway is only one form of travel. R.C. 4507.02(B)(1) does not prevent Appellant from engaging in interstate or intrastate travel by walking, running, taking a bus, a train, a bicycle or an airplane. Appellant is free to go anywhere he wishes. He is merely restricted to do so by utilizing forms of travel in which he is not the driver of a motor vehicle. (Par. 17, citations omitted).

4. Verdict forms for level of offense.

State v. Sims, 2024-Ohio-5829 (1^st. Dist.). Felony OVI conviction, on remand from the Supreme Court of Ohio, was reversed and remanded due to verdict form issues with instructions to the trial court to enter a finding of guilt to a fist degree misdemeanor OVI offense. The parties stipulated at trial that the defendant had been convicted of a felony OVI offense in 2018. The verdict form, however, stated the defendant being found guilty of R.C. 4511.19(A)(1)(a) and R.C. 4511.19(A)(2).

R.C. 2945.75(A)(2) provides a “guilty verdict shall state either the degree of the offense of which the offender is found guilty, or that such additional element or elements are present. Otherwise, a guilty verdict constitutes a finding of guilty of the least degree of the offense charged.” In this case, to sustain a felony OVI conviction, the jury must find a prior felony OVI conviction, as charged in the indictment, as an element of the offense. The use of a general verdict form, without additional findings, will limit the conviction to a first degree misdemeanor.

In State v. Pelfrey, 2007-Ohio-256, the court found materials outside of the verdict form, including the complaint, indictment, or stipulations, cannot be considered on the issue of the level of offense. This includes an express finding of a prior conviction or the level of offense. In State v. Mayes, 2024-Ohio-4616, the Supreme Court reaffirmed the finding in Pelfrey, but also provided the additional element, such as a prior conviction, could be satisfied by referring to the specific statute for that offense. As the court in Sims noted, neither of these statutory provisions define the OVI offense level. (Par. 22).⁹ In the absence of a jury finding of the additional enhancing element, the conviction reverts to the lowest level. R.C. 2945.75(B)(2).

Author’s Note: Although verdict form issues generally occur with felony offenses, with a third OVI offense in ten years the level of offense is increased from a first degree misdemeanor to a higher, serious offense unclassified misdemeanor. No appellate cases have been discovered as guidance on this issue. Even though a first or second OVI offense in ten years are both first degree misdemeanors, because of the penalty differences, verdict forms may also be considered.

5. Drug dog delay of traffic stop.

State v. Church, 2024-Ohio-5931 (5^th. Dist.). Order overruling motion to suppress and conviction for possession of a fentanyl-related compound and aggravated possession of drugs were affirmed. After a traffic stop the officer discovered the defendant’s driver’s license was suspended. While talking to the defendant the officer noticed the defendant’s constricted pupils, which is consistent with opioid use. Although the defendant denied opioid use, the officer called for a drug dog. While the officer was explaining the citation to the defendant, the dog arrived and alerted the officers, resulting in discovery of a large quantity of methamphetamine and fentanyl in the vehicle. The total stop lasted twenty two minutes.

The issue on appeal was whether the officer improperly extended the duration of the traffic stop. The appellate court noted that an officer may delay a motorist for a time period sufficient to issue a ticket or warning. The measure of the time period includes the time sufficient to run a computer check of the driver's license, registration, and vehicle plates. (Par. 19, citations omitted.). Citing State v. Perkins, 2019-Ohio-4328 (5^th. Dist.), the issue was framed as “not whether the dog sniff occurs before or after the officer issues or could have issued the initial ticket, but whether the dog sniff adds time to the stop.”(Par. 21). In the present case the court found there was no time was added to the stop in order to bring a dog to the scene as the purpose of the traffic stop had not yet been fulfilled when the officer arrived and walked his dog around the car. (Par. 22, 24).

The defendant also argued that the stop was pretextual, but did not argue the validity of the traffic violation. (Par. 25). The court rejected this argument, noting as long as a traffic violation occurred, the officer’s subjective motive for making the traffic stop is irrelevant.(Par. 28).

6. Limitation of trial court on remand.

State v. Mathis, 2024-Ohio-5707 (8^th. Dist). On limited remand from the court of appeals to issue findings of fact and conclusions of law after suppression hearing, the trial court exceeded the scope of the remand order by dismissing the charges.

7. Ineffective assistance of counsel for not filing motion to suppress.

State v. Smith, 2024-Ohio-5752 (12^th. Dist.). Convictions for OVI and driving under an OVI suspension were affirmed. The defendant withdrew his not guilty plea and entered no contest pleas to the OVI (third offense in ten years) and driving under a suspended license. On appeal the defendant raised ineffective assistance of counsel for failure to file a motion to suppress.

Rejecting this assertion, the court of appeals found the record did not support any cogent argument that the motion would have been successful. (Par. 11). The court noted that the failure to file a motion to suppress is not per se proof of ineffective representation. The defendant must prove from the record that there was a basis for the motion and that it would have been successful if made. (Par. 9, citing State v. Brown, 2007-Ohio-4837.Other citations omitted.)

8. Delegating community control supervision.

State v. Oakes, 2024-Ohio-5867 (4^th. Dist.). Convictions for weapons while under disability, inducing panic, four counts of endangering children, using weapons while intoxicated, and domestic violence were affirmed, but remanded to the trial court for re-sentencing. The defendant was placed on community control supervision with conditions that he successfully complete a CBCF and continue with out-patient treatment to include but not limited to the prosecutor’s Vivitrol Program. After explaining the possible incarceration term and the other possible sanctions for not compliance, the sentencing order included, “The Vivitrol Program or The Adult Parol Authority can sanction under the terms of this order.” (Par. 5).

The issue raised on appeal was whether the trial court could delegate authority to the Vivitrol Program and Adult Parole Authority ("APA") to adjudicate community-control violations and impose sanctions.¹⁰ R.C. 2929.15(B)(1), provides, “ if the conditions of a community control sanction imposed for a felony are violated . . . , the sentencing court may impose on the violator one or more of the following penalties . . :” (Par. 24, emphasis added by the court.)¹¹ The sentencing court may impose certain penalties on an offender for the violation of a condition of a community control sanction, but the statutes do not authorize the court to delegate its sanctioning authority to a non-court third party. (Par 26). The appellate court also noted that Criminal Rule 32(A) requires the court to conduct a hearing prior to imposing a prison sentence for a community control violation or revoking probation which would preclude a third party from imposing any probation violation sanction. The court on appeal also distinguished between a pretrial diversion program by the operation of the prosecutor under R.C. 2935.36, and a conviction and sentence.

Author’s Note: Although R.C. 2936.36(A) gives the prosecutor authority to establish a diversion program, it does not, however, vest exclusive authority in the prosecuting attorney for diversion programs in Ohio. Cleveland v. Mosquito, 10 Ohio App.3d 239 (8^th. Dist. (1983). Under R.C. 2936.36(A), the conditions for participation are set out by the prosecutor and operated by written standards approved by the presiding judge by journal entry. A diversion program created by a court also requires the prosecutor’s approval to avoid an issue of separation of powers. Lane v. Phillabaum, 12^th. Dist. Butler, No. CV-2004-5-1427 (2008). The prosecutor retains the right to object to any dismissal order for diversion program participants.

9. No right by victim to review post judgment presentence report.

State v. Evans, 2024-Ohio-5996 (10^th. Dist). An order denying post judgment inspection of presentence report by victim was affirmed. The defendant plead guilty to vehicular assault from aggravated vehicular assault with the remaining felony charge of failure to stop after an accident, and two misdemeanor OVI charges dismissed. After being passed for sentencing, the defendant was sentenced to community control supervision.

R.C. 2930.131(A) provides: If the presentence investigation report is made available to the defendant prior to the sentencing hearing, the court shall simultaneously provide a copy of the report to the prosecutor assigned to the case. If requested, the prosecutor shall promptly forward a copy of the report to the victim, victim's representative, and victim's attorney, if applicable, except those parts of the report that are redacted by the court or made confidential by law.

Statutory construction.

R.C 2930.131 was effective April 6, 2023 and has not been subject to appellate review. As a matter of statutory construction, the primary concern in the legislative intent. This is based on the words in the statute and a court may not insert or delete words to reach a conclusion on the statute. (Par. 6, relying on Columbia Gas Transm. Corp. v. Levin, 2008-Ohio-511 and other omitted citations). When a statute's meaning is "clear, unequivocal, and definite, then statutory interpretation ends, and the court applies the statute according to its terms."  In re Certificate of Need Application for Project "Livingston Villa," Cuyahoga Cty., 2017-Ohio-196 (Par. 6, other citations omitted.).

Application to R.C. 2930.131.

R.C. 2930.131 must be read in conjunction with R.C. 2951.03 and Crim.R. 32.2, which generally govern the preparation and handling of presentence investigation reports. (Par. 8). Copies of the presentence report may be given to the defense counsel, defendant, and the prosecutor prior to sentencing, but cannot make copies of the report.¹² By operation of R.C. 2930.131 and R.C. 2951.03, it is the prosecutor’s obligation to provide the presentence report to the victim upon request by the victim. Any copy forwarded to the victim by the prosecutor must be returned to the court at the conclusion of the sentencing hearing. R.C. 2951.03(D)(2).¹³

In the present case the victim’s request for the presentence report was made to the court, not the prosecutor. In addition, it was untimely, being made one week after the sentencing hearing. The record shows the victim had notice and appeared at the sentencing hearing, but did not attempt to obtain a copy at that time, making the request a week after the sentencing hearing. The court held the victim forfeited his right to review the presentence report by not timely raising the issue. (Par. 13).

2. Upcoming Education Opportunities

• January 29-31, Winter Conference, Association of Municipal and County Court Judges of Ohio, Embassy Suites, Dublin, Ohio. (Limited to active and retired municipal and county court judges.)

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.

• August 19-22, 2025, In-depth education on the judge’s role in treatment courts, AllRise Treatment Court Institute, Oklahoma City, Oklahoma. 

• 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 State Bar Association offers a wide variety of related video courses and live webinars with approved continuing legal education credit. The on demand video courses are generally one hour long. Membership with the Ohio State Bar Association is not required for registration, but there is a membership discount. See the CLE store at Ohiobar.org.