← All posts

Traffic Signals — June 2025

TRAFFIC SIGNALS NEWSLETTER

Dear Colleagues,July 7, 2025

This newsletter sets out a summary of Ohio court decisions in June, 2025, 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. Often, a minor traffic violation may lead to discovery of an impaired driver, even without erratic driving, or other criminal acts.

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 call or email me with any feedback.

Patrick Carroll, retired judge

Ohio Judicial Outreach Liaison to the ABA

Carrolljol26@gmail.com

(216) 403-5521

OVI Sentencing issues.

Length of probation

State v. Yemsvat, 2025-Ohio-1971 (3d. Dist.). The penalty imposed for reckless operation conviction was affirmed. The defendant was arrested for OVI after being stopped by an officer due to a nonvisible license plate. The officer smelled burnt marijuana from the defendant’s car as he approached. The defendant told the officer he had smoked earlier that day. The defendant also had glassy eyes and slurred speech. After performing field sobriety tests, the defendant was arrested for OVI. A sample given by the defendant showed a result of over 200 nanograms of THC metabolites per milliliter, with the prohibited level at 35 nanograms of marihuana metabolite per milliliter of the person's urine. R.C. 4511.19(A)(1)(j)(viii)(II).

The defendant entered a no contest plea to an amended charge of reckless operation in violation of R.C. 4511.20(A) and was placed on two years’ probation with a one year license suspension. On appeal the defendant disputed the length of the community control supervision and driver’s license suspension. Although the defendant asserted there was no evidence of impaired or reckless driving, the appellate court noted the arresting officer observed numerous signs of impairment. The court took further notice that the defendant “apparently chose to drive a vehicle on a public roadway” in this impaired condition. (Par. 11).

The defendant did not dispute the penalties were available sanctions that fell within the statutorily authorized ranges. Reviewing the facts of the case the court found the probation and driver’s license suspension terms were consistent with the misdemeanor sentencing provisions of R.C. 2929.21 and R.C. 2929.22.

Author’s Note: R.C. 4511.20(A), Operation in willful or wanton disregard of the safety of persons or property, is a minor misdemeanor which does not expressly provide for a license suspension. R.C. 4510.15, however, provides that when a defendant is found guilty of operating a motor vehicle in violation of any law relating to reckless operation, the court may impose a class five driver’s license suspension (6 months to 3 years) in addition to any other penalties.

Term of incarceration.

State v. Cordell, 2025-Ohio-2089 (6^th. Dist.). Conviction and sentence for felony OVI offense was affirmed. The defendant was originally charged with two third degree felony OVI offenses and entered a no contest plea to one fourth degree felony OVI offense. At sentencing the prosecutor recommended an 18 month period of incarceration. The defendant sought driving privileges with an ignition interlock. The court imposed a 30 month period of incarceration and a lifetime driver’s license suspension.

On appeal, the defendant asserted the trial court did not properly apply the sentencing standards of R.C. 2929.11 and R.C. 2929.12. The court of appeals held, however, it was precluded from reviewing a felony sentence on this basis under State v. Jones, 2020-Ohio-6729.

In the present case the sentence was within the statutory range. In addition, the trial court was aware of the defendant from previous participation in drug court and a record of nine or ten prior OVI cases, finding the defendant demonstrated he could not maintain sobriety but continued to drive. “The more likely recidivism factors outweigh the less likely factors.” (Par. 4).

OVI and proof of impairment.

State v. Smith, 2025-Ohio-2086 (2d. Dist.). Convictions for aggravated vehicular homicide, aggravated vehicular assault, and operating a vehicle while under the influence were affirmed. This case arose out of a head-on collision. From the location of the vehicle debris and a gouge in the road caused when the two vehicles collided, the police determined the defendant had crossed the centerline into the other vehicle’s line of travel. The driver of the other vehicle and two passengers were killed at the scene with another passenger permanently disabled from a traumatic brain injury. The defendant/driver was taken to the hospital for treatment. The paramedics who took the defendant to the hospital testified the defendant told them he had had a lot to drink that day. A partially consumed bottle of rum and an empty beer were found in the defendant’s vehicle. The defendant’s blood/alcohol content was .290, and his urine test for alcohol was 391. The jury returned guilty verdicts on all three courts and the trial court imposed an aggregate prison term was 64 to 71.5 years.

OVI and proof of impairment.

Regarding the charges, the court noted the prosecutor was required to prove the defendant caused the death of another, or caused serious physical harm to another, as the proximate result of committing any OVI offense as defined by R.C. 4511.19(A). The defendant asserted the prosecution did not prove he was driving while "under the influence" because there was no proof that he was actually impaired by alcohol at the time of the collision. Rejecting this assertion, the appellate court noted under both R.C. 2903.06 and R.C. 2903.08, a violation of any section of R.C. 4511.19(A) may serve as the predicate offense for aggravated vehicular homicide and aggravated vehicular assault. (Par. 19). Proof of actual impairment is not necessary when a defendant’s alcohol level exceeds the prohibited limit. (Par. 19, citing City of Defiance v. Kretz, 60 Ohio St.3d 1 (1991)). The evidence of the defendant’s BAC and urine sample in excess of the prohibited alcohol limit was sufficient to prove a violation of R.C. 4511.19(A).

Evidence of suspended driver’s license.

The defendant asserted by there was no causative connection between driving with a suspended license and the deaths in this case. The defendant’s argument, however, was based on a charge of involuntary manslaughter under R.C. 2903.04. As the appellate court pointed out, driving under a suspended licensed was a predicate offense and the causal relationship is an element of involuntary manslaughter.

Under R.C. 2903.06, which was the charge in this case, driving under a suspended license is not an element of the offense, but enhances the degree of the offense. (Par. 22). Although a violation of R.C. 2903.04 requires causation as an element of the offense, there is no causal requirement under R.C. 2903.06 between the death of another and the defendant’s suspended license. Rather, R.C. 2903.06 only requires proof of a suspended license at the time of the collision, not that the suspended license was the cause of the collision.

Evidence of acts of decedent driver.

The defendant asserted there were other proximate causes which served to negate his culpability, specifically:

1. The yellow lane-dividing lines were not clear because remnants of a prior yellow center line remained visible after the roadway had been widened and the line repainted,¹ and

2. The victims were not wearing seatbelts.

Regarding the lack of seatbelts, the appellate court noted “a defendant cannot escape criminal liability merely because factors other than his actions contributed to the death or injury to the victims, unless the other factors were the sole proximate cause." (Par. 27, citations omitted.). The defendant was essentially asking the court to ignore his own conduct and focus on the victims’ lack of seatbelts as the cause of death. Rejecting this argument, the court held the “crime is complete when the defendant, while operating a motor vehicle, sets in motion with the required state of mind the chain of conduct and events resulting in the death of another.” (Par. 29).

Maximum sentence.

The imposition of a maximum prison term is not contrary to law when the sentence is within the statutory range for the offense and the court considered the purposes and principles of felony sentencing set forth in R.C. 2929.11 and the seriousness and recidivism factors set forth in R.C. 2929.12. (Par. 57). Although the defendant argued the seriousness and recidivism factors set forth in R.C. 2929.12 were not supported by the record, the court held reviewing and weighing those factors exceeded the permissible scope of appellate review under R.C. 2953.08(G)(2)(b), citing State v. Jones, 2020-Ohio-6729, ¶ 39.

Consecutive sentence.

Although prison terms are presumed to be served concurrently in felony cases, a trial court has discretion to impose consecutive sentences when the facts support the factor set out in R.C. 2929.14(C)(4). The court in this case found a single act could result in multiple offenses within the meaning of R.C. 2929.14(C). The court found the “deaths and serious injuries to multiple victims supported the trial court's conclusion that the harm caused by the defendant's conduct was so great that a single prison term was not adequate to reflect the seriousness of his conduct.” (Par. 67). The court also noted that not only was the defendant was still on community control supervision from a prior felony OVI conviction, but that he had cut off the alcohol monitor and absconded from probation until the time of the collision. (Par. 69).

Author’s note: The issue of actual impairment, as opposed to exceeding the per se amount or level under R.C. 4511.19, was raised in State v. Balmert, 2024-Ohio-1207, (9^th. Dist.). Balmert involved a conviction for aggravated vehicular assault. The case was argued in the Supreme Court of Ohio on April 23, 2025 and pending decision.

On scene video issues

1. Police car interior video of the defendant

State v. Jonathan Hinton, 2025-Ohio-2291 (4^th. Dist.). OVI, driving under suspended license, and marked lanes convictions were affirmed. An off-duty deputy encountered the defendant at a gas station who was lost. The deputy noticed the defendant had slurred speech when he asked where he was. The defendant was unstable on his feet, swaying back and forth and "high stepping it" as if his depth perception was off. (Par. 5). The deputy called the Highway Patrol, but the defendant left before the deputy could stop him. Following the defendant, the deputy saw the defendant drive at a high rate of speed and going left of center multiple times. A highway patrol trooper who received the call saw the defendant go back and forth across the centerline. After the trooper stopped the defendant he noticed the defendant had a strong odor of an alcoholic beverage that got stronger as the deputy got closer to the defendant. The trooper also noticed the glassy, bloodshot eyes.

The defendant responded that he does not drink and had not been drinking that day. There were empty beer cans in the defendant’s truck. The defendant refused to perform field sobriety tests, but offered to “negotiate the stop.” (Par. 8). Based on all the visible factors, including conduct, speech, and mental state, the defendant was arrested for OVI. The defendant refused any chemical tests, speaking over the trooper as he attempted to explain the tests. After a bench trial, the defendant was found guilty.

Video of defendant’s conduct in the trooper’s car.

The trooper’s car was equipped with two cameras, one facing outward and the other showing the interior of the car. A video was played at trial over the objection of the defendant showing the defendant’s conduct when in the back of the car. At times the defendant was docile and other times he was kicking the car door. The objection was based on the defendant’s continued profanity and racist remarks. The prosecutor sought to introduce the video to show the defendant’s mood swings.

The trial court admitted the video, but cautioned that anything not relevant would be disregarded. When making a finding of guilt, the trial court distinguished between the defendant’s offensive, inflammatory language, which was not relevant to or part of the OVI charge, and the depiction of the defendant’s conduct indicating impairment and impaired decision making. (Par. 15).

On appeal the court recognized that with a bench trial the reviewing court presumes the judge will only consider relevant, material, and competent evidence absent an affirmative showing to the contrary. (Par. 18, citations omitted.). Moreover, the trial court expressly stated it did not consider the defendant’s inflammatory comments to the extent they were irrelevant. Moreover, the court noted the defendant’s comments were only some of the evidence presented to show the defendant was impaired when operating the vehicle.

The defendant also attacked the conviction on the grounds of manifest weight and sufficiency of the evidence, claiming the conviction was based on his racist and inflammatory remarks. The court found that from his physical appearance, erratic driving, odor of alcohol and other evidence of impairment any rational trier of fact could have found the defendant was operating a vehicle under the influence of alcohol. (Par. 36).

BMV driving record.

The defendant objected to the admission of his BMV driving record as evidence of his suspended driver’s license. The BMV record contained a certification letter

from the Ohio Department of Public Safety, Bureau of Motor Vehicles, captioned "Record Request Certification" and stated that the attached documents are "true and accurate copies of the files or records of the Registrar" with a seal affixed in accordance with R.C. 4501.34(A). The statute provides “All courts shall take judicial notice of the seal.”

The court found the record was properly self-authenticating under Evid.R. 902(4) because it was a copy of an official record, certified as correct by the Registrar, and with a certification that complied with Evid.R. 902(1) with an official seal that conformed with R.C. 4501.34(A). (Par. 24). The court also found the record was properly authenticated under Evid. R. 901(A). (Par. 25).

2. Modification of video for trial.

State v. Wood, 2025-Ohio-2170 (2d. Dist.). An order denying post-conviction relief was affirmed. The defendant was convicted of OVI and repeat offender specification which was affirmed on appeal. see State v. Wood, 2023-Ohio-2788 (2d Dist.).

Under R.C. 2953.21(A)(1)(a), a convicted defendant may assert a denial or infringement of constitutional rights that would render a conviction void or voidable. (Par. 15, citations omitted.). As noted in State v. Monroe, 2015-Ohio-844 (10^th. Dist.), “A petition for postconviction relief is a means by which the petitioner may present constitutional issues to the court that would otherwise be impossible to review because the evidence supporting those issues is not contained in the record of the petitioner's criminal conviction.” (Par. 15, citations omitted.).

One of the claims asserted by the defendant was the police video that was played to the jury of the OVI scene was altered with some statements edited out. What the record showed, however, was that portions of the videos were redacted for evidentiary reasons by agreement of both counsel. Ironically, one part that was omitted was a conversation between police officers at the scene about the defendant’s prior OVI record. Moreover, defense counsel specifically stipulated to the admission of the videos as long as they were the videos with the redacted portions.

The court found there was no prejudice to the defendant from the redacted videos. The court also held the issue could have been raised on direct appeal and was barred from further litigation by res judicata.

Author’s Note: Municipal courts do not have jurisdiction to hear post-conviction relief petitions under R. C. 2953.21. State v. Cowan, , 2004-Ohio-1583.  Municipal courts are creatures of statute and have limited jurisdiction. R.C. 1901.18 and 1901.20 provide for their creation, with the former statute relating to civil matters and the latter relating to criminal and traffic matters. Neither R.C. 1901.18 nor R.C. 1901.20 provides for jurisdiction over post-conviction relief petitions in municipal court. Had the General Assembly envisioned such jurisdiction, it could have explicitly conferred it in R.C. Chapter 1901. State v. Cowan, supra at par. 11. See also, State v. McCombs, 2015-Ohio-2556 (2d. Dist.).

Traffic violation as basis for stop and officer credibility.

1. Loud muffler.

State v. Weese, 2025-Ohio-2193 (9^th. Dist.). An order overruling motion to suppress and drug convictions were affirmed. The defendant’s vehicle was pulled over due to a loud exhaust. A bulge was seen in the defendant’s hoodie and after a drug dog walk, 150 grams of crystal methamphetamine were found on the defendant. The defendant filed a motion to suppress based on the traffic stop. The motion was overruled and the issue of the validity of the traffic stop was raised on appeal.

Excessive exhaust noise is in violation of R.C. 4513.22(A) and may be a reasonable suspicion for a traffic stop. (Par. 7, citing  State v. VanScoder, 92 Ohio App.3d 853 (9^th. Dist. 1994). At the trial level the defendant disputed the muffler was loud. The defendant’s mechanic testified he had tested the exhaust a week after the incident when he replaced an exhaust gasket as part of a transmission repair of the car. Although the mechanic testified the exhaust system appeared to be in working order, he did not test the vehicle at 55 mph, the speed of the defendant when she passed the officer.

The officer’s body camera and cruiser video did not include audio of the moving car. The audio is not programmed to turn on until the officer is stationary at the side of the road. The trial court noted a loud exhaust is somewhat subjective and may be perceived as loud to one person, but not another. (Par. 9).

Despite the conflicting testimony the trial court found the exhaust was loud enough to justify the traffic stop. On appeal the court noted “the evaluation of evidence and the credibility of witnesses are issues for the trier of fact." (Par. 4. Citation omitted.). Based on the trial court’s determination of the officer’s credibility was supported by competent evidence.

2. Crossing over center dash line

State v. Tucker, 2025-Ohio-2108 (4^th. Dist.). Convictions of possession and trafficking marijuana and an order overruling a motion to suppress were affirmed. The arresting officer testified he was working a drug interdiction assignment when the defendant’s car passed him and the defendant/driver pulled himself behind the pillar in the car. The officer noticed the car was a rented vehicle with out of state plates and began following the defendant who was driving between 60 and 70 mph in a 70 mph zone. Other cars were passing the defendant. The officer stopped the defendant when the officer saw the defendant’s car drift over the "center dash lane line" by a tire width. At the time of the stop the defendant admitted he was not paying attention and was “messing with” something on the steering wheel while he was driving. (Par. 4, 15).

A motion to suppress based on the traffic stop was overruled and the defendant was found guilty of the charges by jury trial. On appeal the court noted R.C. 4511.33(A)(1) requires a vehicle to 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." (Par. 13). A violation of R.C. 4511.33 may be reasonable, articulatable suspicion to support a traffic stop. The court distinguished the holding in State v. Turner, 2020-Ohio-6773, that driving on or touching the white fog line did not constitute a marked lanes violation because in the present case the tire had gone over the line. (Par. 14, emphasis in the original.)

At the suppression hearing the officer’s cruiser video was played, but did not show the lane violation. The officer explained the camera did not pick up everything the officer sees based on the angle of the camara. Although the evidence of a marked lane violation was factually disputed, the appellate court noted the trial court was free to discount or outright reject the officer’s testimony in the absence of accompanying video footage confirming the testimony, but was also free to accept the testimony. (Par. 15). The appellate court gave deference to the trier of fact on credibility issues because "it is in the best position to gauge the witnesses' demeanor, gestures, and voice inflections, and to use these observations to weigh their credibility." (Par. 15, citation omitted.).

3. Rear license plate light.

State v. Davis, 2025-Ohio-2322 (5^th. Dist.). An order overruling a motion to suppress and convictions for improper handling of a firearm in a motor vehicle, (felony offense), and two unclassified misdemeanor OVI offense, were affirmed. The defendant was seen by the officer around midnight driving over the posted speed limit. The officer was not able to determine a specific speed because the defendant slowed down when he passed the officer. When the defendant released his brakes, the officer noticed the rear license plate light was not working.

The officer stopped the vehicle and approached the defendant in the car, noticing a strong alcohol beverage odor and glassy, bloodshot eyes. After the defendant told the officer he had a gun, the butt of a firearm cold be seen protruding from the driver’s seat. According to the officer the defendant seemed confused when answering questions. The defendant refused to perform any field sobriety tests or a breath test. A search warrant was obtained for a blood sample and the defendant was arrested.² After a motion to suppress was overruled the defendant entered no contest pleas to the charges.

The issue on appeal was limited to the validity of the traffic stop. R.C. 4513.05 requires either a taillight or a separate light to illuminate the rear registration plate for the plate to be legible from a distance. The officer testified the rear license plate was not legible for a fifty foot distance and the rear license plate light was not illuminated. When the officer turned on his overhead lights, he also activated a spotlight on the police car which made it difficult to see if the license plate light was on from the video. As a result, the cruiser video was inconclusive.

The defendant argued the video did not show the light was not working and the sole, unsupported testimony of the officer was not sufficient to show a valid traffic stop. Citing State v. Howell, 2018-Ohio-591 (1^st. Dist.), the court recognized,

Probable cause can exist even if the officer incorrectly determines that a traffic violation has occurred or if the officer misunderstands the law that the driver is allegedly violating. The test is whether an objectively reasonable police officer would believe that a traffic violation has occurred based upon the totality of the circumstances. (Par. 19, other citation omitted.).

Thus, even assuming the license plate light was working, the appellate court found it was objectively reasonable the officer would have believed there was a violation of R.C. 4513.05 and that the officer’s testimony alone was sufficient justify the stop.

Reasonable suspicion information from other sources.

1. Identified caller.

State v. Wolfe, 2025-Ohio-2096 (5^th. Dist.). An OVI conviction and an order overruling a motion to suppress were affirmed. The defendant was stopped by an officer is response to a caller who reported the defendant’s erratic driving, which including running stop signs and driving through residential yards. The caller gave the license plate number and kept visual contact following the defendant until the police arrived. The officer began following the vehicle and after seeing the car drive in the middle of the unmarked roadway and fail to maintain lanes of sufficient width pulled the car over. The defendant was charged with two OVI counts, including refusal with a prior conviction. After a hearing in which the motion to suppress was overruled, entered a no contest plea to one OVI count.

Regarding the officer’s reliance on the caller’s information, the appellate court noted, “The ‘reasonable suspicion’ necessary to justify such a stop is dependent upon both the content of information possessed by police and its degree of reliability." Alabama v. White, 496 U.S. 325 (1990). Reasonable suspicion for an investigative stop may be supplied to the officer by another person. Navarette v. California, 572 U.S. 393 (2014). (Par. 12). When "the information possessed by the police before the stop stems solely from an informant's tip, the determination of reasonable suspicion is limited to an examination of the weight and reliability due that tip." Maumee v. Weisner, 87 Ohio St.3d 295, 299 (1999). " (Par. 13).

In the present case the caller gave his name, phone number, and address to the police dispatcher, described the car he was following including the license plate, the direction and roads he was driving and a description of the reckless driving he observed in real time. (Par. 16). Based on that evidence the court found the caller had a sufficient indicia of reliability for the officer to have a reasonable suspicion to stop the defendant. In addition, the court noted the officer’s own observations of traffic violations when he followed the defendant which formed a sufficient basis upon which to stop the vehicle. (Par. 18).

2. Other police officers

State v. Hayes, 2025-Ohio-2238 (10^th. Dist.). A conviction for possession of cocaine and an order overruling motion to suppress were affirmed. The defendant was the subject of an investigation for an illegal drug operation and was followed by undercover task force members in unmarked vehicles. After the undercover agents observed a marked lane and no turn signal violation, a patrol officer was notified who stopped the defendant. A K-9 unit conducted an open-air sniff of the exterior of the vehicle and alerted to the trunk area. A locked safe containing drugs, cash, and the defendant’s passport and birth certificate was found in the trunk. The defendant’s motion to suppress was overruled after a hearing and the defendant entered a no contest plea to the charge.

On appeal, the defendant argued there was no valid reason for the stop and he was impermissibly targeted by the police for a stop. In this case the officer who made the stop was not the officer who actually witnessed the traffic violation. The court cited the “collective knowledge doctrine,” by which an officer may make a valid traffic stop based on information provided by other officers if and when if those officers have reasonable suspicion to make the stop. State v. Muldrow, 2016-Ohio-4774 (10th Dist.). (Par. 52). The court found the officer who made the stop received information regarding about the traffic violations through the other officers possessed reasonable suspicion under the collective knowledge doctrine to initiate a valid traffic stop. (Par. 52).

Reversal of motion to suppress

1. Unreasonable detention for dog sniff

State v. Tanner, 2025-Ohio-2087 (2d. Dist.). An order overruling a motion to suppress was reversed. The defendant was stopped for crossing over the stop bar at a traffic light. The officer recognized both the defendant and her car from prior encounters, including the defendant being passed out in a parking lot a month earlier. After checking the identification of both the defendant and the passenger, the officer learned both had prior drug convictions but no active warrants. The defendant had a valid license and was the owner of the car. Approximately four minutes into the stop the officer called for a drug dog.

The defendant and passenger were removed from the car and patted down. The defendant did not appear to be impaired. The drug dog arrived approximately twelve minutes into the stop and did an air sniff around the vehicle. Based on the dog’s alert, the officer searched the car, finding three syringes and two glass pipes used for smoking methamphetamine. After the motion to suppress was overruled, the defendant entered a no contest plea to one drug count, with the remaining counts dismissed.

The issue on appeal was whether the officer improperly extended the stop for the dog sniff. As the court noted, the issue was not whether the stop as a whole lasted a reasonable amount of time, but whether the stop was prolonged beyond what was necessary to resolve the reason for the stop. (Par. 20). In this case there was no evidence the officer was waiting for any additional information from dispatch necessary to finish the tasks reasonably related to the purpose of the traffic stop. (Par. 21). The evidence showed the officer stopped the traffic citation process while waiting for the dog to arrive and did not resume any efforts to complete the traffic stop until after the dog alerted the officer of drugs in the car.

Although an officer does not need to have reasonable suspicion before summoning the canine unit, the officer does need specific and articulable facts to justify prolonging the duration of the traffic stop beyond what was necessary to issue the citation. (Par. 23). In the present case, the stop occurring in a high crime area, the officer’s prior encounter with the defendant, the clutter in the car, and knowledge of the defendant’s prior drug conviction were not sufficient to create a reasonable suspicion of a criminal act to permit detention of the defendant beyond the scope of the traffic stop. Upon review of the record, the court found the investigation of the traffic violation concluded before the canine's arrival and therefore, the further detention of the defendant was not reasonable.

2. Supplemental motion to suppress

State v. Bracey, 2025-Ohio-2133 (6^th. Dist.). (2-1 decision.) An order overruling a motion for leave to file supplemental motion to suppress was reversed. The defendant left a house that was under surveillance by a border patrol agent and police detective. As cars were leaving the house they would be followed and upon seeing a traffic violation, stopped by the police. The defendant was stopped for failure to use a turn signal which the defendant disputed. At the stop the defendant informed the officers he had a gun in the back of the passenger’s seat. The defendant did not have a permit and was cited for improper handling of a firearm in a motor vehicle. A motion to suppress was overruled based on the validity of the traffic violation.

After the suppression motion was overruled the defendant’s attorney withdrew and a new attorney filed a motion for leave to file a supplemental motion to suppress on the grounds of racial profiling. The trial court denied the motion for leave but permitted the defendant to proffer in writing the arguments which would have been made if the request to supplement had been granted. The defendant filed the supplemental brief, entered a plea of no contest, and was found guilty of the firearm charge.

On appeal the court noted Criminal Rule 12(H) gives the court discretion for good cause to file a motion to suppress out of rule. The court noted “good cause” is not defined and is generally accepted as a substantial reason that affords a legal excuse and is a

very flexible, equitable term that will depend upon the circumstances of the case. (Par. 24, citations omitted.). Based on the facts of this case, including the defendant’s testimony at the suppression hearing raising the issue of racial profiling and no opposition by the prosecutor to the motion for leave, the court found the trial court should have allowed the supplemental motion to provide the defendant the opportunity to produce evidence to support his contention that he was subjected to an unlawful traffic stop. (Par. 32).

The dissent pointed out that the motion for leave was not based on new evidence, but an additional legal argument that was available to the defendant with the prior motion to suppress. The dissent also cited Dayton v. Erickson, 1996-Ohio-431, which held a traffic violation stop is not unreasonable under the Fourth Amendment to the United States Constitution 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. 61).

Sufficiency and manifest weight of evidence to support OVI conviction.

State v. Kenyada Hinton, 2025-Ohio-2249 (1^st. Dist.). OVI conviction affirmed. This case involved a one-car collision with a guardrail. When the officers arrived the driver’s side door was laying against the guardrail and detached from the car a few feet away. The defendant was in an ambulance but had no injuries and was not taken to the hospital. The first officer at the scene smelled alcohol on the defendant’s breath while the defendant was in the ambulance. The defendant said she had come from a bar, telling one officer she had one drink while a few moments later telling the other officer she had consumed "a few drinks" while at the bar.” (Par. 4).

While at the scene the defendant stumbled when she tried to stand up and had difficulty getting her license out of her wallet to give to the officer. The defendant’s speech was slow, lethargic, and slurred, with some words unintelligible. She also showed mood swings, at times dancing at the scene. The defendant was taken to the police station for field sobriety tests and based on the results which showed impairment she was cited for OVI. After a bench trial the defendant was found guilty.

On appeal the defendant asserted the trial court’s decision was not supported by sufficient evidence³ and against the manifest weight of the evidence.⁴

Regarding the sufficiency of the evidence, the appellate court found from the facts set out above, including a severe one car collision, admission and smell of alcohol consumption, erratic behavior including drastic emotional mood swings, and the field sobriety test results, the evidence was sufficient to prove that the defendant ingested alcohol and the alcohol impaired the defendant's subsequent driving. (Par. 9-10, relying on State v. Bowden, 2020-Ohio-4556 (1st Dist.). The court noted “All these characteristics are indicative of someone who is impaired by alcohol.” (Par. 10, citing on State v. Richards, 2016-Ohio-3518 (1st Dist.)

Regarding the manifest weight of the evidence, the defendant asserted the signs of impairment could have been caused by a head injury from the collision. The court noted, however, that the defendant did not indicate any injury at the scene and after being examined by paramedics, was not taken to the hospital for treatment. (Par. 14). Moreover, the physical characteristics shown by the defendant were more in line with alcohol impairment.

City of Fremont/State of Ohio v. Dotts, 2025-Ohio-2315 (6^th. Dist.). OVI conviction affirmed. The defendant was stopped for speeding around midnight. The officer determined the sped in excess of 40 mph in a 25 mph zone by pacing the defendant’s car. As he approached the car the officer smell alcohol on the defendant’s breath and noted the defendant had bloodshot and glassy eyes. The defendant told the officer it was a new vehicle and he was not used to its quick acceleration.

Although the repeated told the defendant to keep his hands on the steering wheel the defendant kept moving them to his lap. The officer testified the observation of the defendant’s conduct was part of a divided attention test. The defendant got out of the car to perform field sobriety tests. The defendant also had a difficult time complying with the direction not to move his head during the horizontal gaze nystagmus test. Overall the defendant showed 4 out of 6 clues on the HGN, 5 out of 8 clues on the walk and turn test, and 2 out of 4 clues on the one leg stand. In addition the defendant was asked to perform an alphabet test, consisting of starting at a designated letter to another and a number test, selecting a number and asking the defendant to count backward from that number. The defendant was not able to successfully complete either test. Although the defendant submitted to a portable breathalyzer test, he did not provide a strong enough sample for a reading.

The defendant told the officer he was taking anti-depressant medicine. The defendant’s testimony varied about the last time he took the medicine. The defendant also told the officer he was coming from a bar but only had one regular sized beer

The defendant was arrested for OVI. The defendant refused a urine test at the station. After a jury trial the defendant was found guilty of the OVI charge.

On appeal, the defendant raised ineffective assistance of counsel. The first ground was the defense counsel’s failure to make a motion for acquittal after the prosecution had rested its case. Reviewing the evidence from the trial, including the police cruiser video, the appellate court held the prosecution presented evidence of each element of the OVI offense. Because the motion for acquittal would not have dismissed the case, defense counsel was not ineffective for not making the motion.

Regarding the weight of the evidence supporting the conviction, the court noted, "the testimony of a single witness, if believed by the trier of fact, is sufficient to support a conviction.” State v. Whitman, 2019-Ohio-2307 (5th Dist.). (Par. 39, other citation omitted.). From the officer’s testimony, as well as the consistent police video at the scene, the OVI conviction was not against the manifest weight of the evidence.

Procedural issues with no contest plea.

State v. Wilson, 2025-Ohio-2110 (11^th. Dist.). OVI conviction reversed due to lack of compliance with Traffic Rule 10. The defendant entered a guilty plea to a third offense misdemeanor OVI offense with the balance of the related charges dismissed. The trial court advised the defendant at the time of the plea of waiving the right to a jury trial, the right to subpoena witnesses and cross-examine witnesses, the right to hold the State to its burden of proof, and the right to appeal all matters except for the imposed sentence.

Traffic Rule 10(C) requires the court to personally address the defendant and inform the defendant of the effect of guilty, no contest, and not guilty and determine the defendant’s plea is voluntarily made. To determine the plea is voluntarily made, Traffic Rule 10(B) requires the trial court to inform the defendant of the effect of a guilty plea and advise the defendant that "[t]he plea of guilty is a complete admission of the defendant's guilt."

As the court noted, “A trial court has no obligation to provide an explanation of the constitutional rights the defendant is waiving by entering a plea. Instead, there are only two requirements a court must satisfy in addressing a defendant: (1) inform him of the effect of the plea, pursuant to Crim.R. 11(B) or Traf.R. 10(B); and (2) determine whether he is making the plea voluntarily." (Par. 13, Citation omitted.).

As a general rule the burden is on the defendant to show an error occurred in the trial court proceedings and that the defendant was prejudiced by that error. State v. Dangler, 2020-Ohio- 2765 (Par. 15, other citations omitted.). The two exceptions to this rule are 1) A failure to explain the constitutional rights set forth in Crim.R. 11(C)(2)(c) that the defendant is waiving, and 2) there is a complete failure to comply with a portion of Crim.R. 11. (Par. 16-17, emphasis in the original, citations omitted.).⁵ A “complete failure to comply” with a non-constitutional requirement of Crim.R. 11 occurs when the court makes 'no mention' of the requirement. State v. Dangler. (Par. 17). In the present case the trial court did not directly advise the defendant that his guilty plea was a complete admission of guilt which the appellate court found to be reversible error.

Administrative regulation and urine sample in OVI case

State v. Vaughn, 2025-Ohio-2274 (12^th. Dist.). Convictions for aggravated vehicular assault and OVI and an order overruling motion to suppress were affirmed. The defendant collided with a utility pole, severely injuring her front seat passenger. The defendant was also injured. At the hospital the defendant told the officer she tried to avoid a squirrel and lost control of the car. The defendant consented to giving the officer a urine sample. A nurse assisted using an unused, one-time use disposable cardboard bedpan to collect the urine. The urine sample was poured from the bedpan into a plastic vial (with preservative) from an OVI test kit provided by Ohio State Patrol. The bedpan was thrown away and the sample was transported to the Regional Crime Laboratory for testing. The urine showed the presence of amphetamines, methamphetamines, and benzodiazepines.

The defendant filed a motion to suppress, raising numerous issues on the validity of the urine test results. The motion was overruled after a hearing and the defendant entered no contest pleas to second-degree felony aggravated vehicular assault and OVI. On appeal the defendant raised issues concerning the motion to suppress.

1. Compliance with Ohio Department of Health regulations.

This case involved operating a vehicle with a prohibited concentration of a controlled substance or its metabolite. R.C. 4511.19(D)(1)(b) requires a urine sample must be analyzed in accordance with methods approved by the Director of Health for admission of evidence of the concentration of metabolites in a defendant's urine at the time of the alleged violation.

Regarding urine samples, Adm. Code 3701-53-06(D), promulgated by the Ohio Department of Health, provides, “The collection of a urine specimen will be witnessed to assure that the sample can be authenticated. Urine is to be deposited into a clean glass or plastic screw top container and capped or collected according to the laboratory protocol as written in the laboratory procedure manual."

Witness requirements.

The defendant objected that the nurse who took the sample was not identified nor testified at the suppression hearing. On appeal the court noted the officer who did testify at the hearing was present when the sample was taken. The officer witnessed the defendant provide the sample to the nurse who in turn gave it to the officer to immediately put into the plastic evidence bottle. The court found the continuous witness of the procedure by the officer substantially complained the Department of Health regulations. (Relying on State v. Ossege, 2014-Ohio-3186 (12^th. Dist.). (Par. 15).

Cardboard collection box

As a preliminary matter, the prosecutor argued Adm. Code 3701.53-06(D) only required the sample to be deposited, not collected, in a clean glass or plastic container. The court held, however, the term 'deposit' in the regulation does not imply a transfer of fluid between containers later in time. (Par. 16). Instead, the court construed the term “collection” to include the entire process of taking blood, urine, and oral fluid for testing. “The purpose of the regulation is to preserve the quality of the specimen to ensure accurate test results, therefore the regulation dictates urine is to be deposited into a clean plastic or glass screw top container.” (Par. 17).

The critical issue was whether use of the disposable cardboard bedpan contaminated the urine sample. The court recognized there may be circumstances when the urine is initially collected in another container. In this case the evidence showed the bedpan was unused, not wet or otherwise degraded. Having shown substantial compliance with the regulation, the burden shifted to the defendant to show she was prejudiced by the use of the cardboard bedpan as "less than strict compliance."  (Par. 20, citing Ossege.) The court held there was no evidence of any contaminants in the bedpan and affirmed the order overruling the motion to suppress.

2. Miranda warning issue.

The defendant also asserted the officer’s interview with the defendant at the hospital was a custodial interrogation. In this case the defendant’s confinement to a hospital bed was not the result of any police conduct. The defendant was not restrained, able to walk, and free to leave. The court held the defendant was not in custody and therefore the officer was not required to provide Miranda warnings prior to interviewing appellant.

Home grown marijuana.

State v. Williams, 2025-Ohio-2190 (12^th. Dist.). A felony conviction for possession of marijuana was affirmed. The defendant was indicted on a fifth degree felony for one count of marijuana possession that equaled or exceeded 200 grams but was less than 1,000 grams. The amount in this case was 305 grams that were stored in jars and a coffee can in the defendant’s home. The marijuana was taken to BCI to be weighed and analyzed. The defendant was found guilty after a jury trial.

The issue on appeal was the weight of the marijuana. The officer who executed the search warrant and seized the marijuana testified that some of the material in the coffee can were some stems and different types of marijuana that people don’t typically smoke. (Par. 6). All of the material was combined into a single plastic bag which weighted approximately 300 grams. The BCI drug chemist who analyzed the material testified that a THC content under 0.3% was considered hemp and was legal. A THC content over 0.3% was considered marijuana and was illegal. The sample in this case returned a THC content of 8.9%. (Par. 9).⁶ According to the testimony, marijuana stalks with no leafy material had very little THC content and were removed from the bag before testing. (Par. 10). The evidence showed the bag consisted of mostly buds and stems with the bud material having the highest amount of THC, and the leaf has "some" THC. (Par. 11).

Brady issue

On appeal the defendant asserted the state destroyed materially exculpatory evidence when all of the marijuana was combined into one bag with illegal marijuana and legal marijuana stalks making it impossible to obtain an accurate weight. Under Brady v. Maryland, 373 U.S. 83, (1963), the government violates a defendant's right to due process when it achieves a conviction through perjured testimony, or by withholding evidence that is "'so clearly supportive of a claim of innocence that it gives the prosecution notice of a duty to produce.” (Par. 17, citations omitted.). The test for whether the State has infringed on a defendant's Brady due process rights by losing or destroying evidence is whether the evidence was materially exculpatory, rather than merely "potentially useful." State v. Powell, 132 Ohio St. 3d 233, 2012-Ohio-2577.

The court distinguished:

1. Material evidence when it has an "exculpatory value that was apparent before the evidence was destroyed, and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means.”

2. Potentially useful is when evidence could have been subjected to tests, the results of which might have exonerated the defendant. 

(Par. 19, citations omitted.).

R.C. 3719.01(M) which defines marijuana, excludes the plant’s mature stalks. (Par. 21). The exclusion in R.C. 3719.01(M), however, only applies when the substance consisted solely of mature stalks or the other excluded materials described in that section. State v. Wolpe, 11 Ohio St.3d 50, 52 (1984). Based on the holding in Wolpe, “the parts of marihuana plant that are excludable pursuant to the statutory definition must be physically separated from the rest of the plant while in the possession of the defendant in order to be excluded from the calculation of weight." State v. Hartkemeyer 2014-Ohio-3560 (12^th. Dist.) (Citations omitted.).

In the present case the court found that although from the photographs admitted as evidence there may have been a few separate stalks, the vast majority of material was plainly marijuana buds or leaf material. (Par. 31). The court noted the assertion that the weighed marijuana was non-illegal marijuana stalks was speculative and therefore, was neither materially exculpable nor potentially useful.

Hemp and marijuana

The defendant asserted that based on the chemist’s testimony that stems contain a lesser amount of THC than the buds and leaves and that she would not test a package of suspected marihuana containing only stems, the material could have been considered hemp. The defendant argued that because the stems were stored separately and had a lesser THC amount, there was an inference that the separately stored stems could be considered hemp. (Par. 40). On appeal the court held although the defendant position that marijuana stems were hemp due to the low THC amount, the stems were part of the statutory definition of marijuana under R.C. 3719.01(M). Hemp and hemp products are separately defined by R.C. 928.01 and are not included in the statutory definition of marijuana. Moreover, the sample analyzed by the BCI chemist showed the THC content of 8.9%, which is considerably higher than the less-than-0.3% threshold necessary for hemp. (Par. 41).⁷

Author’s Note: Home grown marijuana. The indictment in this case occurred in April, 2023. Effective December 7, 2023, six marijuana plants per adult are permitted with a maximum of 12 plants per household. R.C. 3780.29. There is no restriction on weight or content imposed by R.C. Chap. 3780, but the amount of marijuana possessed or grown is still subject to the limitation in R.C. 2925.03 & R.C. 2925.04, illegal trafficking and cultivation of marijuana. See, R.C. 3780.99(F).

H.B. 56 and S.B. 160, which are currently pending in the Ohio General Assembly would reduce the number of plants to a maximum 6 per household.

Restitution determination

State v. Green-Sarubbi, 2025-Ohio-2112 (11^th. Dist.). A conviction for physical control under the influence of alcohol was reversed on the issue of restitution. The victim’s car had been declared a total loss by the insurance company and paid out to the victim the estimated value of the car, minus the $500 deductible. The trial court awarded restitution in the amount determined by the insurance company plus the amount of sales tax paid by the victim to obtain a replacement car.

The appellate court agreed with the trial court’s attempt to return the victim to the same position he was in prior to the incident but must be done in view of the definition of economic loss as defined by R.C. 2929.01(L). The 'prior position' approach to compensatory damage, however, is not synonymous with economic loss as defined by the statute. (Par. 6).

The appellate court also agreed with the trial court that the costs of repairs in this case was not an appropriate method of damage calculation because the repair cost exceeded the value of the damaged vehicle. (Par. 12). The appellate court noted that the trial court is not bound by the value placed by the insurance company when determining restitution. The court found the correct standard in this case was the cost of the replacement vehicle, which was comparable in condition and milage as the totaled vehicle, minus the amount of the insurance payment. (Par. 13). Due to the evidence in the record, the case was remanded to the trial court for re-calculation of restitution.

Author’s note: Restitution is limited to the victim’s economic loss, which is the “detriment suffered by a victim as a direct and proximate result of the commission of an offense." R.C. 2929.01(L). The amount of restitution ordered by the court, however, does not preclude a crime victim from seeking additional or consequential damages not covered by the restitution order. R.C. 2929.18(H) (felony offenses); R.C. 2929.28(H) (misdemeanor offenses).

Failure to comply with lawful order

State v. Simon, 2025-Ohio-2024 (9^th. Dist.). A misdemeanor conviction for failure to comply with an order or signal of a police officer under R.C. 2921.331(B) was affirmed. The defendant challenged the conviction on appeal based on manifest weight and sufficiency of the evidence. The officer in this case pulled directly behind the defendant to attempt to make a traffic stop for a license plate violation. The officer activated the overhead lights and the defendant pulled onto the berm of the highway, over the rumble strips, and slowed down by applying his brakes, butt then proceeded back into traffic. This conduct was repeated three or four times over a three and one half miles on the highway with both police lights and siren activated before the defendant finally stopped. During this time the defendant was speeding, following other vehicles too closely, and cutting off other vehicles on the roadway.

The defendant testified that he was not fleeing the officer, but just trying to find a safe spot to pull over and stop. The appellate court found, however, the evidence was sufficient to support the conviction and even if the defendant’s explanation was believed, the evidence did not weigh heavily against the conviction.