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Traffic Signals — April 2025

TRAFFIC SIGNALS NEWSLETTER

Dear Colleagues,May 7, 2025

This newsletter sets out 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. 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 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 their assistance in the distribution of the newsletter. Please feel free to contact 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, April, 2025.

OVI Convictions.

1. Multiple tests.

City of Kent v. Hughes, 2025-Ohio-1499 (11^th. Dist.). An order overruling a motion to suppress and OVI conviction were affirmed. The defendant was stopped at 3:00 a.m. for driving without headlights in rainy conditions. The three occupants in the car gave conflicting stories of where they were coming from. During this time the officer noticed the smell of an alcoholic beverage from the car and the driver having bloodshot, glossy eyes. The defendant was asked to get out of the car so the officer could determine the source of the alcohol odor. After determining the alcohol odor on the driver’s breath, the defendant was asked to perform field sobriety tests. Based on those tests results, the defendant was arrested for OVI.

Submitting to a breathalyzer, the BAC was 0.077 with a “low blow.” The officer requested a second chemical test due to the defendant’s apparent impaired conduct and a “marijuana shake” found in the car during the vehicle inventory. The urine test showed a BAC of .11 along with positive results for marijuana and cocaine.

Probable cause for arrest.

The defendant asserted the officer lacked probable cause to arrest him for intoxication because his speech was coherent, he only had one traffic violation, and he was cooperative during the traffic stop. The court noted, however, that there were other indicia of impairment, citing State v. Evans, 127 Ohio App.3d 56 (11th Dist. 1998) for a non-exhaustive list of factors of impairment. The court concluded from the factors observed by the officer, including the alcohol odor, the defendant’s appearance, driving at night without headlights, and the field sobriety test results, the officer had probable cause to arrest the defendant for OVI.

Multiple chemical tests.

As part of exercising the right to drive, under R.C. 4511.191(A)(2), a driver gives consent to chemical testing. The court noted the specific language of R.C. 4511.191(A)(2) permitting “chemical test or tests.” The court further noted R.C. 4511.191(A)(2) authorizes police to conduct multiple tests and does not either prevent an officer from administering multiple chemical tests or establish a maximum number of tests. (Par. 24, citations omitted.). Due to way the defendant took the breath test, it was not unreasonable or improper for the officer to request a different chemical test.

2. Lack of chemical or field sobriety tests.

Thompson v. Warden, N. Cent. Corr. Inst., Case No. 2:24-cv-4224, 2025 U.S. Dist. LEXIS 67890, 2025 WL 1071205 (S.D. Ohio, 2025). Petition for writ of habeas corpus from state court OVI conviction was denied.¹ The defendant’s OVI conviction was affirmed by the 12^th district court of appeals. State v. Thompson, 2024-Ohio-2112 (12th. Dist).² The defendant was convicted of OVI in violation of R.C. 4511.19(A)(1)(a) for operating a vehicle under the influence. The defendant challenged the conviction in the court of appeals and federal court on the grounds there were no field sobriety tests. The record shows, however, that the defendant had refused the field sobriety tests when offered. Moreover, the testimony of three trained officers that the defendant smelled of an alcoholic beverage, had slurred speech, and was belligerent, glassy eyed, and unsteady on his feet was sufficient evidence to support the conviction. Denying the writ, the District Court found there is no constitutional requirement that impairment by alcohol be proved by any chemical or field sobriety test or that it be video recorded. 

Traffic violations as probable cause.

1. Marked lane violation.

State v. Duncan, 2025-Ohio-1504 (4^TH. Dist.). An order overruling a motion to suppress and conviction for possessing and trafficking fentanyl related drugs were affirmed. The defendant was stopped for a lane violation after the officer saw the defendant’s car tires travel over the outside edge for the solid white fog line on the right side of the road. After seeing a second violation, the officer stopped the defendant’s car. During the stop a drug dog sniff revealed drug in the car.

R.C. 4511.33(A)(1) requires all vehicles "be driven, as nearly as is practicable entirely within a single lane or line of traffic and shall not be moved from such lane or line until the driver has first ascertained that such movement can be made with safety." A police officer may stop the driver of a vehicle after observing even a de minimis violation of traffic laws. Whren v. United States, 517 U.S. 806 (1996), and Dayton v. Erickson, 1996-Ohio-431 (Par. 12).

The defendant asserted the stop was invalid because his driving outside of marked lanes did not create a safety hazard, relying on two cases in which convictions for marked lane violations were reversed because the prosecution did not present any evidence that the lane violation was done without safety. State v. Barner, 2004-Ohio-5950 (9th Dist.), and State v. Ross, 2013-Ohio-1488 (9th Dist.). (Par. 16). Distinguishing these cases, the court in Duncan noted the issue in this case was the lawfulness of the initial stop, not whether there was sufficient evidence to support a conviction for a marked lanes violation. (Par. 17, citation omitted). A “traffic stop is constitutionally valid when a law-enforcement officer witnesses a motorist drift over the lane markings in violation of R.C. 4511.33, even without further evidence of erratic or unsafe driving.” State v. Mays, 2008-Ohio-4539.

The defendant also asserted the motion to suppress should have been granted because there was no dashcam video recording of the violations. An officer, however, does not have a constitutionally mandated duty to record his encounter with a defendant and that the failure to create such evidence did not result in any violation of due process rights.  State v. Wyse, 2022-Ohio-1979 (6th. Dist.) (Par. 20). According deference to the trier of fact on the issue of credibility, the appellate court upheld the trial court’s statement that because "the violations did not occur on camera does not mean that they did not happen." (Par. 21). The appellate court warned, however, that although video dashcam recordings are not required, a trier of fact could choose to discount an officer's testimony in view of the failure to collect audio and video evidence. State v. Wooten, 2002-Ohio-1466 (4^th. Dist.). (Par. 19).

State v. Allison, 2025-Ohio-1360 (5^th. Dist). An order overruling a motion to suppress and conviction for failure to comply with a lawful police order were affirmed. The officer stopped the defendant for marked lane violations after seeing the defendant’s car twice drive over the centerline of the road. While the officer was checking the defendant’s driver’s license, the defendant drove away, reaching speeds of 120-130 mph on I-70. The car was stopped by another officer’s road spikes and the defendant fled on foot. The defendant was found in the nearby woods and charged with OVI, failure to comply with a lawful police order, and assault.

The issue on appeal was the validity of the initial traffic stop. In State v. Turner, 2020-Ohio-6773, the court held a tire must cross the entire single solid white longitudinal line on the right-hand side of a roadway — the "fog line" - in order to constitute a marked lanes violation.  (Par. 11). The court noted the same standard applies to the centerline of the roadway. (Par. 11, citations omitted.).³ Reviewing the officer’s dash camera on appeal, the court found it corroborated the officer’s testimony and showed the defendant's tires appeared to briefly but completely cross the center dividing line on two occasions. (Par. 14). Consequently, the court held the officer had a reasonable, articulable suspicion that the defendant committed multiple marked lane violations under R.C. 4511.33, justifying the stop of the vehicle.

2. Turn signal violation.

State v. Moore, 2025-Ohio-1326 (5^th. Dist.). Conviction for drug possession and order overruling motion to suppress were affirmed. The issue in this case involved the validity of a traffic stop for a left turn with no turn signal. The defendant argued the road veered to the left as a curvature in the road, but not enough to be considered a turn requiring a signal. R.C 4511.39(A) requires drivers to signal continuously during the last 100 feet before turning or moving left or right on a highway.

The court noted a turn signal violation is a valid traffic stop. (Par. 12). The court further stated the issue is not whether a defendant could have been stopped because a traffic violation had in fact occurred, but whether the officer had probable cause to believe an offense had occurred. The fact that a defendant could not ultimately be convicted of failure to obey a traffic signal is not determinative of whether an officer acted reasonably in stopping him for that offense. (Par. 10).

The road in this case was a “Y” intersection with a traffic light before a car could proceed in either direction. The appellate court noted that the right side curve had a “no turn on red” sign posted by the traffic light. (Par. 18). The court also noted from the dashcam evidence the curve to the left is equal to the curve to the right. (Par. 18).

In arriving at its conclusion, the court distinguished State v. Trout, 2019-Ohio-124 (5^th. Dist.), which also involved a turn signal issue at a “Y” intersection. The court in Trout noted there was no traffic control device at the intersection. The physical necessity to turn slightly to the right when continuously traveling on the next road following the curvature of the roadway is not a "turn" as contemplated by the statute. Trout at Par. 21-22. As such, the officers’ mistaken interpretation of the statute in Trout was unreasonable. In Moore, however, the court concluded from the layout of the road and the traffic light there was objective evidence from which a reasonable police officer could have concluded that a traffic violation had occurred. (Par. 18, relying on State v. Cronin, 2011-Ohio-1479 (1^st. Dist).

When does the stop end – re-approaching the defendant.

State v. Robinson, 2025-Ohio-1539 (4^th. Dist.). An order overruling a motion to suppress and OVI and resisting arrest convictions were affirmed. After the officer passed the defendant in the opposite direction, the officer saw the defendant abruptly stop, pull off to the side of the road, and shut off the lights. The officer turned around to make sure the driver did not need assistance. As the officer approached the car, he testified to a pool of liquid outside the driver’s side car door, which the officer believed to be urine as “everything else around it was frozen.” (Par. 6). The driver appeared nervous as he sat in the car eating pizza and avoiding eye contact with the officer. The officer testified the defendant had bloodshot eyes and slurred speech.

After a brief inquiry in which the officer determined there was no mechanical problem with the car, the officer told the defendant to “take care” and began to walk away. A few seconds later the officer returned to ask the defendant to take field sobriety tests. Upon the defendant’s refusal, he was placed under arrest for OVI. While being handcuffed, the defendant began to run and was caught by the officer.

The trial court found the initial approach by the officer was in his caretaking capacity, justifying the officer’s approaching and investigating why there was a sudden stop. (Par. 10). The trial court further found although there may not have been probable cause at this moment in the stop, there was a reasonable articulable suspicion for expanding the scope.

Initial stop.

On appeal the court noted the community-caretaking/emergency-aid exception to the Fourth Amendment warrant requirement allows police officers to stop a person to render aid if they reasonably believe that there is an immediate need for their assistance to protect life or prevent serious injury, citing State v. Dunn, 2012-Ohio-1008. In this case the record supported the finding that the officer approached the car out of a concern of a disabled vehicle and not to pursue a criminal investigation.

Re-approaching the vehicle.

The defendant asserted that after the officer began to walk away there were no other additional facts to prolong the stop. Upon review, the court held the officer could rely on the same set of observations and factors to articulate the reasonable suspicion to investigate the defendant's impairment because there was no initial traffic stop that was prolonged. (Par. 36). When an officer suspects from observations a driver may be impaired, an officer has authority to expand the scope of a stop to further investigate impairment. (Par. 37, citation omitted.). In this case the lapse between the time the officer began to walk away and return to the car was a few seconds. From what he was able to observe from the prior encounter, he was justified in continuing the inquiry and expanding the scope of the stop to conduct further investigation on whether the defendant was impaired.

In State v. Evans, 127 Ohio App.3d 56 (11th Dist. 1998), the court set out eleven factors to consider when reviewing the totality of the circumstances surrounding an officer's decision to administer field-sobriety tests. The list of factors is not exhaustive. No single factor determines the issue of impairment and there is no requirement that a set number must be present to find reasonable articulable suspicion. (Par. 39).

In the present case the court noted four of the Evans factors were present;

1. the time—midnight,

2. avoiding eye contact and bloodshot/glossy eyes,

3. slurred speech, and

4. fidgeting with his phone.

The court also noted the defendant’s abrupt stopping within seconds of passing the officer's cruiser, parking on the side of the road and turning off all lights, and being "extremely nervous." (Par. 41). Upon review of the totality of the surrounding circumstances, the record showed specific facts demonstrating a reasonable and articulable suspicion that the defendant was driving the vehicle while impaired.

State v. Ballein, 2025-Ohio-1240 (4^th. Dist.). An order granting a motion to suppress was reversed.⁴ Upon receipt from dispatch of a reckless, possible impaired driver. The officer located three cars driving together in the described direction and when one car turned off, the officer identified one of the two remaining cars as the one reported. The officer followed the car for a short distance and pulled the car over going 68 mph in a 55 mph zone. The driver did not appear impaired to the officer, but the route she was taking to her destination was indirect and unnecessarily long. The officer went back to his car and told the other officer the driver’s reactions appeared normal and said, “I'll get her out of here, be right back.”

The officer went back to the car but became suspicious because the passenger/defendant continued to stare straight ahead with no eye contact or speech during the encounter. The officer asked if there were any drugs that a drug dog might detect and the driver responded, “Not that I know of.” The defendant was asked to get out of the car and the officer saw a drug pipe and a baggie that was later identified as methamphetamine.

The trial court granted the motion to suppress without making any findings of fact. At a later pretrial conference the trial court indicated the ruling was based on the officer’s statement to the other officer that he saw no impairment and was going to “get her out of here” which ended the stop.

On appeal, the court found the officer’s statement should not be viewed in isolation but part of the totality of the circumstances facing the officer. The officer’s decision to continue the stop included the driver’s evasive answers regarding the indirect route, the reason for speeding, evasive response to the question about a drug dog search, passenger’s lack of eye contact, and report from other motorist of suspected impaired or reckless driving. Viewing the totality of the circumstances, there was sufficient evidence of reasonable suspicion to extend the stop. Once the drugs were found in plain view, the traffic stop had turned into a criminal investigation.

Generally, an officer may order all occupants to step out of a vehicle pending completion of the traffic stop. (Par. 30, citations omitted.). Moreover, in this case the officer’s request to step out of the car was his routine practice, not a search for any incriminating evidence. (Par. 31). Regardless of the officer’s motive, the stop was made for the speeding offense. (Par. 34, 42, citations omitted.). The court further noted only a few minutes had lapsed when the statement was made and a decision had not been made to issue a speeding citation or warning when he returned to the car. Thus, the duration of stop was not unreasonably delayed. Rodriguez v. United States, 575 U.S. 348, 354 (2015).

Marijuana as probable cause.

1. Odor of marijuana.

Lane v. Dolman, No. 5:23-CV-02138, 2025 U.S. LEXIS 64167 (N.D. Ohio 2025). Dismissal of civil complaint against sheriff deputies for search of vehicle. During the course of a traffic stop, the deputies smelled marijuana and searched the plaintiff’s truck over the plaintiff’s objection. The plaintiff/driver explained that he was a cannabidiol ("CBD") farmer, and that CBD smells identical to raw marijuana. Notwithstanding his objection, the truck was searched and no marijuana was found.

The case was dismissed on qualified immunity grounds. The court found there was no dispute of:

1. valid traffic stop,

2. deputies smelled raw marijuana, and

3. scent of legal CBD and illegal marijuana are indistinguishable.

In United States v. McCallister, 39 F.4th 368, 375 (6th Cir. 2022), the court found probable cause is present even when the substance could be legal but is indistinguishable from an illegal substance

The court explained the defendants were exempt from the need to obtain a warrant to search the plaintiff's vehicle because it smelled of marijuana, which constituted probable cause to conduct a reasonable search pursuant to their law enforcement duties. The test for probable cause is a reasonable basis, not absolute certainty, for suspecting criminal activity. Because the odor could have reasonably led an officer to believe that marijuana was in the vehicle, even if that belief was mistaken, the deputy defendants had probable cause and the search was not unreasonable.

State v. Baldwin, 2025-Ohio-**** (1^st. Dist.). An order overruling motion to suppress was reversed with concession by prosecutor. The defendant was initially stopped for tinted windows but also discovered to have a suspended driver’s license. There were no moving violations. The defendant told the officer he had a gun in the car. He had no criminal record and not under any weapons disability. The defendant complied with the officer to get out of the car for a pat down. At that time the officer smelled marijuana which the defendant told his he had smoked earlier. Based on the marijuana smell, the officer conducted a search of the car. Some smoked marijuana remnants were found in the car. The defendant told the officer of another gun which was on the back seat of the car. The defendant was charged with improperly handling of a firearm in a motor vehicle.

On appeal, the prosecutor conceded that the smell of burnt marijuana at the scene of the defendant's non-arrestable traffic violation did not constitute probable cause to search his vehicle. (Par. **). Although the parties disagreed about the continuing validity of State v. Moore, 2000-Ohio-10 on the ability to search a car based on marijuana odor in the car, due to the prosecutor’s concession, the court did not address this issue.

2. Presence of marijuana.

United States v. Whitlow, 134 F.4^th. 914 (6^th. Cir. 2025). An order overruling a motion to suppress regarding state police enforcement of federal laws was affirmed. The defendant was stopped for driving with an expired license plate. During the course of the stop the officer noticed loose bits of marijuana around the gear shift on the console. The defendant told the officer he had a “weed license.” The defendant was removed from the car and during a pat down, a bag of marijuana was found. As the officer and a backup officer searched the car, two firearms were found in the glove compartment.

Due to prior federal convictions, the defendant was charged with unlawful firearm possession in federal court. After a hearing with the motion to suppress overruled, the defendant was convicted after a jury trial. The issues on appeal were probable cause and the authority of a state police officer to conduct a warrantless search of the car for a federal violation.

Authority of state officer.

The court noted the authority of a state police officer to enforce a federal violation depends on whether (i) federal law authorizes or is silent on state-officer enforcement; (ii) state law forbids state-officer enforcement; or (iii) federal law forbids state-officer enforcement. The court found both federal and Ohio law were silent on whether a state officer may enforce the Controlled Substances Act. When federal law authorizes state-officer enforcement or is otherwise silent, the Fourth Amendment does not prevent state officers from enforcing federal law. The court noted supporting reasoning to include:

1. historically enforcement of federal law was often left to state officials and federal law enforcement agencies are relatively recent institutions.

2. The Supremacy Clause makes "all laws of the United States the supreme law of the land," and thus, it's no different for a state officer to enforce federal law "as one of its own statutes." Marsh v. United States, 29 F.2d 172, 174 (2d. Cir. 1928).

3. Courts routinely allow state-officer enforcement of federal law in the absence of affirmative federal authorization. 

The court also noted the restriction on the Department of Justice to stop states "from implementing their own laws that authorize the use, distribution, possession, or cultivation of marijuana did not prevent the enforcement authority of state officials. (fn. 2).

Probable cause.

The appellate court held the loose bits of marijuana scatted in the car’s console was a violation of the federal Controlled Substance Act which includes marijuana, 21 U.S.C. 844(a), and sufficient to establish probable cause. The difference between a state and federal law is irrelevant to whether a Fourth Amendment violation has occurred. See, Cooper v. California, 386 U.S. 58, 61 (1967), ("a search not expressly authorized by state law" can still be "constitutionally reasonable.”) and  386 U.S. 58, 61 (1967) and  California v. Greenwood, 486 U.S. 35, 43 (1988). (a search's reasonableness was not dependent on state law.)  The court in Whitlow concluded “The question remains constant: is there probable cause for the search or arrest even if it is for a minor crime. Any additional protections a state provides are treated "exclusively as matters of state law."  Virginia v. Moore, 553 U.S. 164, 166-67, 171 (2008).

In addition to violation of federal law, the court also held the evidence of scattered marijuana bits were also a violation of Ohio law. At the time of the offense only medical marijuana was lawful in Ohio. The officer testified from his experience “dried marijuana that often falls from drug paraphernalia, when people are rolling marijuana blunts or using it inside vehicles" and “suggests illegal drug use.” Moreover, even with medical marijuana, it was not in the "original dispensing package with an unaltered dispensary label" or in the "container provided by a dispensary" as required by Ohio Admin. Code § 3796:7-2-05(G). Nor was the medical marijuana stored in a "secure location" to prevent unauthorized access. Id. at § 3796:7-2-05(E).

Author’s Note: How can states legally permit sales of federally illegal marijuana? Marijuana, whether medical or recreational, remains a schedule I illegal substance under federal law. Congress, however, has prohibited the Department of Justice ("DOJ") from using its appropriated funds to take legal action against states that have implemented laws legalizing medicinal marijuana. See Consolidated Appropriations Act of 2022, Pub. L. No. 117-103, 136 Stat. 49, § 530 (2022) ("Rohrabacher-Farr Amendment"). That spending rider has also been interpreted to prohibit the DOJ from prosecuting individuals or organizations that produce, distribute, or possess marijuana in compliance with their state's medical marijuana laws. See, Brinkmeyer v. Wash. State Liquor & Cannabis Bd., Case No. C20-5661, 2023 U.S. Dist. LEXIS 20564, 2023 WL 1798173 W.D. Wash. 2023).

Miranda warning at the scene.

State v. Doering, 2025-Ohio-1297 (5^th. Dist.). An order overruling a motion to suppress and conviction for aggravated drug possession were affirmed. Officers arrived at 2:57 a.m. to a gas station where a car had been parked for several hours. At the car the officers noted the defendant was sweating profusely through a sweatshirt despite the cold weather, acting erratically, had "tremors," was speaking rapidly, and giving incoherent reasons why he was at the gas station.

Although initially saying there were no drugs in the car and he was on probation, after being told a drug dog was called he admitted there were drugs in the car without identifying any specific drug. The defendant was removed from the car and handcuffed as a standard procedure, along with shutting off the car for the dog. In response to a question by the officer, the defendant responded to a question that there was nothing in his pockets that could poke or stick the officer. A bag of meth was found in the defendant’s glove compartment. After the drugs were found the defendant was arrested and read his Miranda rights.

Reasonable suspicion to extend detention

An officer needs no suspicion or cause to run a dog around a stopped vehicle if the sniff is performed contemporaneously with legitimate activities associated with the traffic violation. Illinois v. Caballes, 543 U.S. 405 (2005). (Par. 17, other citations omitted.). In this case the court concluded that based on their observation the officers had reasonable and articulable suspicion to temporarily detain the defendant and elevate the encounter from a consensual stop to an investigative detention. (Par. 20). The sniff was performed contemporaneously with the reasonable detention and alerted the officers to the presence of drugs. (Par. 21).

Miranda warnings.

The defendant asserted his statement about meth in the car were the product of a custodial interrogation and should have been suppressed. Miranda applies to custodial interrogations. A statement obtained during a custodial interrogation, in the absence of the requisite warnings, is considered a product of coercive influences and compelled within the meaning of the Fifth Amendment to the United States Constitution. In Miranda v. Arizona, 384 U.S. 436 (1966) the Court defined custodial interrogation as "questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way..."  (Par. 24). Custodial interrogation is measured by an objective standard, not by the subjective understanding of the suspect. (Par. 25).

The court found the defendant’s initial statement that he had meth was made as he was getting out of the car and not in custody. (Par. 28). The remaining questioning and statements were made after the defendant was out of the car and handcuffed by the officers. Without deciding if the defendant was in custody for purposes of requiring Miranda warnings, the court found the defendant made the same statements to the officers later after being advised of his rights. Theretofore, any prior Miranda violation was cured and did not affect the defendant’s substantial rights or the outcome of the suppression hearing. (Par. 29). Moreover, from the K9 alert and the defendant’s impaired behavior and appearance, a reasonable person could conclude that the defendant did in fact possess and had used drugs that night, without any admission from appellant. (Par. 31).

Procedural issues and impact on conviction.

1. Lack of factual finding with motion to suppress.

State v. Opheim, 2025-Ohio-1211 (9^th. Dist.). An order overruling a motion to suppress was reversed for lack of factual findings. The officer came to the defendant’s home on a report of leaving the scene of a collision. Obtaining the license plate, the officer went to the defendant’s home . The officer saw new front end damage to the car with the same license plate. Speaking to the defendant, the officer smell of alcohol on the defendant’s breath. The defendant was also unsteady as he spoke to the officer. The defendant admitted driving the car home but did not say how long ago or explain the front end damage to the car. After the defendant declined the field sobriety tests, he was arrested for OVI. At the station the defendant refused the breathalyzer. The defendant ultimately entered a no contest plea to the OVI charge and was found guilty.

The issue on appeal was not informing the defendant of his Miranda rights when being questioned by the officer.⁵The trial court overruled the motion to suppress, finding it was not a custodial interrogation, but did not make any specific factual findings that supported this conclusion. The appellate court remanded the case to the trial court to make specific findings of fact.

Author’s Note: Criminal Rule 12 (F) requires factual findings when factual issues are involved when determining the motion to suppress. When a trial court does not make findings on suppression motion as required by Criminal Rule 12(F), the appellate court may either reversed and remand or make a complete de novo review in determining whether the trial court properly denied the motion to suppress. State v. Morales, 2018-Ohio-3687 (10^th. Dist.).

2. Explanation of circumstances not complete.

State v. Scudder, 2025-Ohio-1267 (1^st. Dist.). OVI conviction from no contest plea was reversed for lack of explanation of circumstances. The defendant was initially charged with OVI in violation of R.C. 4511.19(A)(1)(a). After the urine test results, the prosecutor made an oral motion to amend the charge to a violation of R.C. 4511.19(A)(1)(j)(ix), involving a prohibited concentration of methamphetamine. The motion was granted over the defendant’s objection. The defendant entered a no contest plea to the amended charge as well as to charges of driving under a suspended license and impeding traffic. During the plea colloquy, the trial court inquired if the defendant wanted "to hear the facts" and defense counsel indicated that he did not. The prosecutor gave a brief summary of the incident and the court made a finding of guilt.

On appeal the conviction was reversed. The appellate court noted for a defendant to be found guilty after entering a no-contest plea to a misdemeanor, the prosecution must provide an explanation of circumstances sufficient to support all of the elements of the offense charged. R.C. 2937.07, relying on State v. Hinds, 2024-Ohio-6042.

In this case the prosecutor gave a summary statement of the offense. The court found the recitation of circumstances was deficient in at least two key respects; 1) No mention methamphetamine, a required element of an OVI offense under R.C. 4511.19(A)(1)(j)(ix) and 2) absence of the amount of methamphetamine found in the defendant’s urine. (Par. 16-17, emphasis in the original).

The court also found defense counsel’s statement that the defendant “did not want to hear the facts” was not sufficient to waive an explanation of circumstances. The court also noted a consent for finding of guilt after a no contest plea is insufficient to waive the requirements under R.C. 2937.07 explanation of circumstances. Instead, the defendant must objectively indicate a clear intention to waive the explanation of circumstances. (Par. 18, relying on State v. Brown, 2017-Ohio-678 (3d Dist.) and State v. Korossy, 2017-Ohio-7275 (6^th. Dist.). Because the defendant did not concede his guilt and the explanation offered by the prosecutor did not set out all of the elements of the offense, the conviction was reversed and the defendant was discharged.

Explaining the decision to discharge the defendant instead of remanding the case for further proceedings, the court distinguished State v. Goirdano, 2018-Ohio-5024. In Giordano, the Court held discharge is not required and double jeopardy does not attach when the prosecution does not offer an explanation of circumstances. In the present case the court held when an explanation of circumstances is provided, but does not established a factual basis for a finding of guilt, discharge, not remand is the proper remedy. (Fn. 2, relying on City of Seven Hills v. McKernan, 2019-Ohio-1001 (8^th. Dist.).

3. Explanation of circumstances and waiver.

State v. McBride, 2025-Ohio-1439 (7^th. Dist.). OVI Conviction was affirmed in the absence of explanation of circumstances. At the time of the no contest plea, the defendant signed a written waiver of the explanation or rights and stipulated to a finding of guilt by the trial judge.

On appeal the court noted the defendant must either be provided an explanation of circumstances as part of the record, or it must be established that the defendant waived a reading of the explanation of circumstances. (Par. 5, citations omitted.). The burden is on the state to ensure that the explanation of circumstances, or waiver of the explanation, is part of the record. (Par. 6). In this case the parties agreed the trial court was provided the police report which was referred to at the time of the plea.

In the present case the court found the waiver of rights form contained a waiver of both the explanation of circumstances and the right to have the case be proven against him beyond a reasonable doubt either before a jury or a judge. In addition, the trial judge verbally explained that the defendant was waiving this right. The court found the defendant waived any evidentiary or standard of proof attacks when he waived the requirement for an explanation of circumstances and for the state to prove its case. (Par. 10).

Author’s Note: In the absence of an explanation of circumstances or unavailability of the prosecutor, if there is a written waiver by the defendant the court should go over the waiver and explain it to the defendant at the time of the plea to ensure the record reflects the waiver was knowingly, intelligently, and voluntarily made. Alternatively, the stipulation of the police report made part of the record if the report sets out all of the required elements of the offense.

Failure to comply with lawful police order.

State v. Williams, 2025-Ohio-1398 (2d. Dist.). A conviction for failure to comply with an order or signal of a police officer was vacated, but the conviction for obstructing official business was affirmed.

Around 5:08 a.m. the officers noticed the defendant driving with a female riding on the hood of the car. The officers made a U-turn and pulled behind the car as the car stopped at the curb. When the officers activated their overhead lights, the defendant/driver ran from the car and was caught about fifteen seconds later. The defendant was charged with failure to comply with a lawful order of the police and obstruction of official business. After a bench trial the defendant was found guilty on both charges.

On appeal the court vacated the failure to comply with a police lawful order conviction. The court held the police order has been construed to be limited to an order that involves the defendant’s act or omission in operating a motor vehicle which, by law, an officer is charged with authority to direct, control, or regulate." (Par. 11, citations omitted, emphasis in the original). The court relied on the statutory definition of “operation” under R.C. 4511.01(HHH) requiring movement of the vehicle.

The court agreed a female on the hood of a moving vehicle is valid grounds for a traffic stop. In this case, however, the court found the defendant had already stopped his car at the curb when the officers pulled behind him and activated the police lights. While the defendant was required to remain at the scene, his running on foot was not related to vehicle operation. (Par. 16). Although the defendant’s attempt to flee on foot was evidence to support the obstruction conviction, not being related to the operation of the car, his conduct did not sufficient to support a conviction for failure to comply with a lawful police order. (Par. 16).

State v. Orenich, 2025-Ohio-1367. (8^th. Dist.). A felony conviction for failure to comply with an order or signal of a police officer with lifetime driver’s license suspension was affirmed. The defendant entered a guilty plea to the charge after being informed a conviction would result in a lifetime suspension of his driver’s license due to a prior conviction in 2008 for failure to comply with a lawful police order. On appeal, the defendant asserted the lifetime driver's license suspension violated his rights under the Fifth and Sixth Amendments of the United States Constitution and R.C. 2945.75 because its predicate was not pleaded in his indictment, admitted to by him, or specifically found by the trial court.

R.C. 2945.75(B) concerns proof of a prior conviction by a certified copy of the entry of judgment of the prior conviction and evidence of identity. In this case, however, the court found the defendant’s prior conviction for failure to comply was a sentencing enhancement, not an element of the failure-to-comply offense in his current case. (Par. 10). In arriving at this conclusion, the court noted that the holding in Apprendi v. New Jersey, 530 U.S. 466 (2000), that sentence enhancements could not be premised on facts not determined by a jury, held a prior conviction is an exception to this general rule. See also, State v. Hand, 2016-Ohio-5504. Relying on State v. Caldwell, 2018-Ohio-3370 (8th Dist.), the court recognized that when a prior conviction enhances the punishment for committing a subsequent crime but does not raise the degree of the offense, the prior conviction does not have to be included in the indictment because it is not an essential element of the subsequent crime.

Author’s note: A second OVI conviction within ten years is a penalty enhancement but does not raise the level of offense. Both a “first” sand “second within ten years” OVI offense are first degree misdemeanor offense, although their penalty varies. A third OVI offense within ten years raises the level of offense to unclassified misdemeanor. Due to enhancement of the level of offense, the two prior OVI offenses are an element of a “third in ten” OVI offense and must be proven by the record of prior convictions.

Probation conditions prohibiting alcohol and drugs.

1. Conditions upheld.

State v. Norton, 2025-Ohio-1413 (11^th. Dist.). Conditions of community control prohibiting use of any drugs, including marijuana, and alcohol by the defendant in drug trafficking conviction were affirmed. R.C. 2929.15(A)(1) specifically authorizes a court to require the defendant not ingest or be injected with a drug of abuse and submit to random drug testing . . .⁶

From the presentence report, the defendant admitted using marijuana since he was fourteen years old for sixteen consecutive years. He also admitted there may be an alcohol problem. The court found the trial court acted within its discretion when imposing any variety of community control conditions, including a condition prohibiting legalized marijuana, because the condition is reasonably related to rehabilitation, had a relationship to the crime of which the offender was convicted, and related to conduct that was criminal or reasonably related to future criminality. (Par. 12, citations omitted). This includes medical marijuana when there is a nexus or relationship between the defendant’s marijuana use and his underlying criminal behavior, even when the defendant has a medical marijuana card. State v. Bourne, 2023-Ohio-2832 (11th Dist.).  (Par. 13). Based on both the defendant’s continued drug and alcohol use the trial court was within its discretion to draw reasonable inferences that the prohibitions at issue were appropriate under the circumstances and in compliance with R.C. 2929.15(A)(1).

State v. Price, 2025-Ohio-1487 (2d. Dist.). A conviction for assaulting a juvenile court bailiff was affirmed. The conviction was based on the defendant’s guilty plea. The parties stipulated on appeal there was no explanation of circumstances under R.C. 2937.07.⁷

Explanation of circumstances.

Except for a minor misdemeanor, the court should call for an explanation of circumstances when accepting a guilty or no contest plea. R.C. 2937.07. The statutory language, however, differs depending on the plea. As an admission of the facts with a no contest plea, an explanation of circumstances is necessary for a court to make a finding of guilt. In Price, the court held a guilty plea goes beyond the admission of facts and includes the admission of guilt to a substantive crime. (Par. 36, citations omitted).

R.C. 2937.07 confers a substantive right on the defendant for an explanation of circumstances with a no contest plea. City of Cuyahoga Falls v. Bowers, 9 Ohio St.3d 148, 150 (1984). The court in Price distinguished the holding in Bowers as limited to a no contest plea, finding no substantive right with a guilty plea. Relying on State v. Russell, 2011-Ohio-1181 (7th Dist.) (Par. 37, other citations omitted.). Although required by statute, the absence of an explanation of circumstances with a guilty plea is harmless error that does not affect the validity of the plea. (Par. 40-41, citations omitted).

Probation conditions, drug and alcohol assessment and mental health evaluation.

When determining the appropriate sentence, the trial court shall consider, among other factors, the need for changing the offender's behavior, rehabilitating the offender. R.C. 2929.21(A). “A principle of sentencing is that sanctions should be designed with an eye to changing the offender's behavior and rehabilitating him."  State v. Bowser, 2010-Ohio-951 (2d Dist.). (Par. 19). Although assault is not an alcohol or drug related offense, the court in Price upheld the conditions of probation.

To begin with, R.C. 2929.27(A) authorizes several non-residential sanctions, including drug and alcohol monitoring and treatment programs. (Par. 18). In addition, the PSI indicated the defendant had used alcohol on a regular basis since she was 14 years old and that alcohol had been a means for her to cope with past situations and decisions. The defendant also reported using marijuana occasionally as well as cocaine and methamphetamine. (Par. 24). The PSI indicated the defendant was diagnosed with anxiety and ADHD (attention-deficit/hyperactivity disorder) due to past trauma.(Par. 25). The defendant made statements to the probation officer and to the court at sentencing that she suffered from mental health issues, including anxiety that affected her ability to cope with her stress and triggered her violent, impulsive behavior.

The trial court could have reasonably concluded that a drug and alcohol assessment would direct the defendant to treatment or services that would deter her from substance abuse, which would help prevent the defendant from engaging in similar violent, impulsive behavior in the future. Accordingly, a drug and alcohol assessment is reasonably related to the defendant’s rehabilitation and served the overriding purpose of misdemeanor sentencing to protect the public from future crime. Similarly, from the defendant’s statements it was reasonable to conclude the criminal conduct was connected to her mental health problems. (Par. 26-27).

2. Non-technical violations.

State v. Stricklett, 2025-Ohio-1247 (4^th. Dist). Probation revocation order affirmed. The failure to comply with probation conditions to abstain from alcohol and drugs and attend AA/NA meetings were non-technical violations. Distinguishing between a technical and non-technical, substantive violation, the Court in State v. Castner, 2020-Ohio-4950 stated, a community control condition that was “specifically tailored to address” matters related to the defendant's misconduct or can be deemed a “substantive rehabilitative requirement which addressed a significant factor contributing to” the defendant's misconduct, does not amount to a technical violation." (Par. 16, other citations omitted.). The court in Stricklett found the violation were non-technical because the conditions were substantive rehabilitative requirements specifically tailored to address the defendant’s substance abuse problems as discussed in the PSI and would positively contribute to reducing the defendant’s likelihood of recidivism. (Par. 21).

Other probation violation issues.

State v. Colson, 2025-Ohio-1266 (4^8h. Dist.). An order revoking community control supervision and imposing incarceration was affirmed. The defendant was on probation for convictions of felonious assault, OVI, and endangering children. Probation conditions included

regular drug testing, complete of an anger-management program, complete of an inpatient-drug treatment program, attend three AA/NA meetings per week, obtain a sponsor, and receive psychological counseling. The defendant was transported to an inpatient drug treatment program and left without permission four days later. After his arrest on unrelated charges a year later, the court conducted a probation violation hearing.

During the hearing the defendant claimed to be employed at Popeyes. The court took a brief recess and instructed the probation officer to verify the defendant’s employment. The officer called the restaurant and reported to the court the general manager told him the defendant had not been employed there.

On appeal the defendant asserted the trial court violated his Sixth Amendment right of confrontation and Fourteenth Amendment due process rights by relying on hearsay evidence obtained in an ex parte manner without the opportunity to cross examine the general manager.

The court recognized a probation revocation hearing is not a criminal trial, but a defendant is entitled to the "minimum requirements of due process" at the final hearing, which include:

a) written notice of the claimed violations,

b) disclosure to the defendant of evidence against him,

c) an opportunity to be heard in person and to present witnesses and documentary evidence,

d) the right to confront and cross-examine adverse witnesses,

e) a neutral and detached hearing body, and

f) a written statement by the factfinders of the evidence relied on and reasons for revoking CCS.

Gagnon v. Scarpelli, 411 U.S. 778, 786 (1973), quoting Morrissey v. Brewer, 408 U.S. 471 (1972). (Par. 18).

Right of confrontation.

The court noted the Sixth Amendment right of confrontation applies to criminal prosecutions. (Par. 20). A probation violation hearing, however, is not a stage in a criminal prosecution. (Par. 21). Consequently, the court held neither the Sixth Amendment nor the holding in Crawford v. Washington, 541 U.S. 36 (2004) applied to the probation violation hearing.

Due Process issues.

Regarding the admission of hearsay evidence, the court noted that although the Fourteenth Amendment right of due process applied to community control supervision violation hearings, the rules of evidence do not apply. Evid.R. 101(D)(3). The admission of hearsay evidence has been affirmed in parole violation hearings. The court in this case stated the due process requirements at a probation violation hearing are the same as with a parole revocation hearing. (Par. 26, citations omitted.)

The court also noted that maintaining employment was not a probation condition. The trial court merely attempted to verify the defendant’s statement to evaluate the defendant’s credibility. In this case the defendant admitted noncompliance with the conditions of probation and stipulated to a finding of probable cause.⁸ Moreover, the trial court did not rely exclusively on the defendant’s statement of employment to revoke probation, but instead the totality of all of the circumstances involving the defendant’s lack of compliance. (Par. 29-30).