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Traffic Signals — July 2025

TRAFFIC SIGNALS NEWSLETTER

Dear Colleagues,August 6, 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

Suppression motions granted by trial court

1. Affirmed on appeal.

State v. Thomas, 2025-Ohio-**** (1^st. Dist.). (2-1 decision.) An order granting a motion to suppress after OVI arrest was affirmed. An officer responded to a call and found the defendant slumped over the steering wheel at the side of the road. The car was running and in reverse gear. The defendant put the car into park at the officer’s direction. There was no odor of alcohol and the officer noted no apparent drug use. The defendant was confused when he woke up, giving the officer his keys in response to a request for his driver’s license. As the stop continued the defendant became combative and uncooperative. He also refused to take any field sobriety tests. The defendant was arrested for operating a vehicle under the influence and refusal to submit to a chemical test with a prior OVI conviction.

After a hearing on the motion to suppress the trial court found the facts and circumstances did not amount to probable cause at the time of arrest and granted the motion to suppress. On appeal the court of appeals agreed. The record contained no evidence of alcohol or drug use, erratic driving, slurred speech, bloodshot, red eyes, or any other factors commonly seen in OVI cases. Upon review of the record there were insufficient facts supportive of probable cause to arrest the defendant for OVI.

The dissent noted that probable cause in an OVI case is lower than what is needed for a conviction. Based on the totality of the circumstances observed by the officer the dissent asserted there was sufficient to cause a reasonably prudent person to believe the defendant was driving while impaired by alcohol.

State v. Jackson, 2025-Ohio-2622 (9^th. Dist.). An order granting motion to suppress was affirmed. The defendant was stopped for driving without headlights at 3:00 a.m. at a red light. When the light turned green the defendant remained stopped for a few seconds and then proceeded through the light. In response to the officer’s signal the defendant stopped the car without any difficulty. The officer testified the defendant had bloodshot, glassy eyes, mumbled speech, and there was an odor of alcohol and burnt marijuana from the car. The officer testified the defendant immediately answered the officer’s questions and had no difficulty complying with the officer’s instructions Because the defendant had a suspended license and an active warrant he was put into the back of the officer’s car for further investigation. The defendant had no problem getting out of his car, standing, and walking to the police car. When asked to submit to field sobriety tests the defendant refused. He was then arrested for two OVI charges, operating a vehicle under the influence and with a prior refusal.¹

After an evidentiary hearing the trial court granted the defendant’s motion to suppress. Affirming the trial court’s order, the court on appeal noted “The legal standard for probable cause to arrest for OVI is whether 'at the moment of the arrest, the police had sufficient information, derived from a reasonably trustworthy source of facts and circumstances, sufficient to cause a prudent person to believe that the suspect was driving under the influence.'" (Par. 8, citations omitted.).² Reviewing the defendant’s conduct at the time of the arrest, the officer did not observe any erratic driving, speeding, or lanes violations. Regarding the marijuana odor, the court noted the defendant admitted he had been smoking, but the officer did not inquire or identify any substance he was smoking or describe the intensity of the alcohol odor. (Par. 9, 16). The officer stated the alcohol smell when the defendant was in the police car could have been from a prior arrested driver. The defendant’s mental and physical reactions were normal. Although the officer testified the defendant had red, bloodshot eyes, the court noted it could have been the result from smoking. Based on the evidence, the court upheld the trial court’s decision of lack of probable cause for an OVI arrest.

2. Reversed on appeal.

State v. Thompson, 2025-Ohio-2427 (5^th. Dist.). An order granting a motion to suppress after OVI arrest was reversed. The defendant was stopped for driving over the marked center of the road. When the officer approached the car he noticed the defendant/driver had an odor of alcohol, bloodshot, glassy eyes, and slurred speech. The defendant admitted to having either two or three drinks. After field sobriety tests were administered, the defendant was arrested for OVI. At the police station the defendant submitted to the breathalyzer.³

At the hearing on the defendant’s motion to suppress, the officer testified the defendant’s vehicle had crossed the centerline. The violation was not clear from the officer’s dashboard camera video. The officer explained it was difficult to see the lane crossing on the video due to the officer’s distance behind the defendant, but could be determined based on the location of the rear taillight relative to the road. The trial court granted the motion, based on lack of corroboration by a police video of the traffic violation that was on the basis for the stop. (Par. 10).

On appeal the court noted that a single suspected traffic violation provides reasonable suspicion for an officer to stop a vehicle. State v. Perkins, 2019-Ohio-4328 (5^th. Dist.). (Par. 9). On a motion to suppress, factual issues are decided by the trial court. The appellate court reviews the suppression order based on the facts found by the trial court. When the facts are disputed, the trial court is required to evaluate the credibility of the witnesses, along with any other evidence to make factual findings.

In the present case the court found the trial court did not assess the credibility of the witnesses, but instead, relied solely on the police video of the incident. The appellate court noted the sole reliance on the video “fails to consider variations in the quality of dashcam video evidence in each individual case.” (Par. 14, citing other cases in which the video did not clearly show a traffic violation.). Rather than solely relying on the video, the video should be viewed in terms of all of the evidence with the trial court making a determination of the officer’s credibility regarding the officer’s observations of the incident and explanation of the video. In remanding the case, the court noted that the trial court was free to accept or reject the officer’s explanation of why the offense is not clear on the video but must evaluate the credibility of the witnesses and weigh the video evidence on a case-by-case basis.

City of Solon v. Moore, 2025-Ohio-2446 (8^th. Dist.). An order granting a motion to suppress after OVI arrest was reversed. The defendant’s 17 year old son called the police out of concern for his mother who had left the house was driving drunk. He gave a description of the car and its direction. The defendant was located in her car in a Giant Eagle Store. The car was running, partially taking up two parking spots. The defendant denied she was drinking, pointing to a bottle of alcohol she had just purchased. The officer noticed mumbled speech and bloodshot, watery eyes, but he did not smell any alcohol.

The officer conducted “pre-exit sobriety assessment tests,” consisting of reciting the alphabet starting in the middle of the alphabet and counting backwards from a specific number. The defendant was unable to successful perform either test. She was then asked by a different officer to get out of the car to perform the three standardized field sobriety tests. The second officer admitted at the suppression hearing it was the first time he had administered the tests and some aspects were not properly administered. The officer also testified to an odor of alcohol from the defendant. The defendant was arrested for two OVI counts, operating a vehicle under the influence and refusal with a prior OVI conviction.

The trial court found the evidence failed to establish sufficient signs of impairment to provide the officers with the reasonable suspicion to extend the stop to administer field sobriety tests and granted the motion to suppress.

Extending the traffic stop.

The court on appeal found the issue was not the extension of a traffic stop. Unlike many OVI cases, the officer may stop a driver for a traffic violation and then extend the stop if there are signs of impairment. (Par. 27). In this case, however, the police responded to a call to specifically investigate a report of an impaired driver. Having encountered the defendant as a result of the report, the issue was whether the officers had reasonable suspicion to administer the administration of field sobriety tests.

Reasonable suspicion to detain the defendant based on the 911 call.

The court found the defendant’s initial detention in her vehicle was justified by reasonable suspicion based on the 9-1-1 call from her son and the subsequent police dispatch based on that call. Citing Maumee v. Weisner, 87 Ohio St.3d 295 (1999), the court noted a telephone tip can, standing alone, create reasonable suspicion justifying an investigative stop if the tip has sufficient indicia of reliability. (Par. 31). An identified citizen informant may be highly reliable and, therefore, a strong showing as to the other indicia of reliability may be unnecessary. The key inquiry is whether, based on the totality of the information available at the time, the dispatcher would have had reasonable suspicion to make the stop if in the position of the officer. Id. (Par. 33).

In the present case the appellate court found not only did the caller identify himself, but from his relationship, had direct interaction and personal knowledge of the situation. He informed in dispatch that his mother had stopped drinking six months earlier but had recently relapsed. (Par. 34). Moreover, the call was made out of concern for the defendant’s safety, as opposed to some other motive. (Par.34) . The court also noted that the defendant being found where the caller had stated reinforced his credibility. From the evidence at the suppression hearing, the court found from the totality of the circumstances the officer had reasonable suspicion to detain the defendant in her vehicle upon locating it just minutes after the dispatch call. (Par. 36).

Reasonable suspicion to conduct field sobriety tests

The court noted that even though an initial stop based on a citizen-informant's tip was lawful, subsequent interaction with a defendant could dissipate reasonable suspicion and render further detention for sobriety testing unlawful. See, State v. Angers, 2021-Ohio-3640, ¶ 12-15 (3d Dist.) (Par. 37).

In this case the court found although from the facts set out in the trial court’s findings of insufficient evidence of reasonable suspicion, there were other facts omitted from the trial court’s determination. The additional facts included the improperly parked car and recently purchased alcohol which reinforced the caller’s statement to dispatch that the defendant had relapsed after a period of sobriety, was drunk, and going out to buy more alcohol. Although conceding not to second guess the trial court, the court concluded the police video corroborated the officer’s observations of slurred speech, even though the trial court found the video did not show slurred speech. Relying on Middleburg Hts. v. Wojciechowski, 2015-Ohio-3879 (8th Dist.), which reversed a case when video footage clearly contradicted trial court's finding). (Par. 46).

The court acknowledged there were positive factors in favor of the defendant, but the issue was the totality of the circumstances facing the officer at the time a decision is made to proceed with the field sobriety tests.⁴ Moreover, the possibility of an innocent explanation does not negate the existence of reasonable suspicion. (Par. 47, citations omitted.). From the eyes of a reasonable police officer on the scene reacting to events as they unfolded, the facts were sufficient to give rise to reasonable suspicion of impairment, thereby justifying the administration of field sobriety testing consistent with the Fourth Amendment. (Par. 49, citations omitted.).

Traffic stop

1. Stop bar violation

United States v. Watson, Case No. 24-3679, 2025 U.C. App. LEXIS 16872 (6^th. Cir. 2025). An order overruling a motion to suppress and conviction for federal firearms offense were affirmed. The officer received a call from a county sheriff who had stopped the defendant with a suspended driver’s license. The defendant refused to identify himself and admitted to driving with a suspended license, claiming to be a member of the “Federal National Society," and state laws did not apply to him. The officer told the deputy he recalled the defendant from a prior stop during which the defendant also refused to provide identification. A few hours later the same officer saw the defendant drive by and after crossing the stop bar at a traffic light, stopped the defendant. Again, the defendant refused to identify himself which led to his arrest. From a search of the vehicle the officer discovered the firearm.

Affirming the order overruling the motion to suppress, the court held, the stop bar violation, notice of driving under a suspended license were valid grounds for the traffic stop.

Stop bar violation

R.C. 4511.13 requires a driver approaching a red light to stop at a clearly marked stop line, but if there is no stop line, to stop before entering the crosswalk. The officer testified the defendant stopped at the intersection, but after he crossed over the stop bar. The court found the officer’s observation of a traffic violation provided sufficient probable cause to authorize a traffic stop. 

Suspended driver’s license

The court identified three key factors that the defendant was driving under a suspended license. 1) The officer observed a vehicle matching the sheriff’s deputy’s previous description of a vehicle whose driver, identified as the defendant, was driving with a suspended license,

2) the officer’s license plate searched revealed that the vehicle was registered under the same name the defendant had previously provided to the deputy, and

3) the officer confirmed with dispatch that the defendant’s driver's license was suspended.

Taken together, the cumulative weight of these facts suggests that there was a "substantial probability" the defendant was continuing to drive with a suspended license.

Failure to disclose personal identification

R.C. 4507.35 requires a driver to provide a driver’s license to a police officer when an officer has a reasonable suspicion that an individual is violating the law. State v. Merell, 2d. Dist. Montgomery, No. 16172 (1997). In the present case the court held the officer had probable cause the defendant was driving with a suspended driver's license in violation of R.C. 4510.111, and therefore, under the circumstances, was entitled to demand to see the defendant’s driver's license. Although the defendant was not cited for failing to provide his driver’s license, the offense for which there is probable cause to arrest need not be related to or based on the same conduct as the offense for which a defendant is arrested. Devenpeck v. Alford, 543 U.S. 146, 153-54 (2004). Based on the defendant’s conduct at the time of the stop, there was a valid basis to arrest the defendant.  

2. Speed calculation

State v. Curry, 2025-Ohio-2702 (5^th. Dist.). An order overruling a motion to suppress was affirmed. The officer stopped the defendant’s car for speeding. As the officer approached the car he smelled burnt marijuana. A subsequent search of the car revealed illegal guns and drugs.

The defendant challenged the validity of the traffic stop based on the officer’s determination of speed by pacing the defendant’s car. The defendant relied on R.C. 4511.091(C)(1), which precludes a speeding conviction based solely on the. officer's unaided visual estimation of the speed. In the present case, however, the appellate court noted the speed estimation over the speed limit was not unaided, but based on the pacing with the officer’s car. (Par. 13, citation omitted.). R.C. 4511.091(C)(1)(a) permits the use of "a stopwatch, radar, laser, or other electrical, mechanical, or digital device to determine the speed of a motor vehicle." 

The officer testified he accelerated to catch up to the defendant until he got close to the vehicle and then maintained a constant speed and distance for 15 to 20 seconds. During that time the speed for both cars was 85 mph. The defendant then slowed to 40-45 mph. (Par. 16-17). Although the police car video showed a shorter, 12 second pacing time, the court found the pacing was long enough period for him to determine that Curry was traveling well above the posted speed limit of 55 mph. State v. Pinnick, 2022-Ohio-3471 (9th Dist.)  (Par. 21).

3. Crossing fog line

United State v. Pope, Case No. 24-3118, 2025 U.S.App. LEXIS 17764 (6^th. Cir. 2025). A conviction for methamphetamine possession with intent to distribute was affirmed. The defendant was stopped as a possible impaired driver after the officer saw the defendant’s car traveling below the speed limit and crossing the fog line. The defendant asserted he only touched but did not cross over the fog line. The court noted “An officer may stop a vehicle when its driver commits a traffic violation—no matter how minor—in the officer's presence.” Whren v. United States, 517 U.S. 806, 810 (1996). Upon review of both the officer’s testimony and dash camera video, the court found the tire had crossed over the lane marking resulting in a valid traffic stop.

Breath test refusal and right to counsel

State v. Allen, 2025-Ohio-2353 (2d. Dist.). A felony OVI conviction and an order overruling a motion to suppress were affirmed. The defendant was stopped for making a wide turn and going 70 mph on a freeway ramp. The officer initially detected a mild smell or alcohol, but after more interaction with the defendant the officer described the odor as strong. Based on a suspicion of being under the influence, the officer asked the defendant to get out of the car. The officer noticed the defendant made a few missteps and appeared to stagger or slightly stumble. The defendant admitted having consumed alcohol the night before but refused all field sobriety tests.

At the station the defendant was given Miranda warnings and asked to speak to an attorney before deciding to submit a breath sample. The defendant was told he could talk to a lawyer later and refused the breath test. The defendant was told due to three prior OVI convictions he could not refuse the breath test and based on the officer’s directive, submitted to the test, giving a .210 BAC result. After a motion to suppress was overruled, the defendant entered a no contest plea to the OVI charge and found guilty.

Validity of traffic stop and probable cause

The defendant asserted on appeal that a de minimis traffic violation and detection of a mild odor of alcohol did not justify prolonging the stop to request field-sobriety testing. The court found, however, that a speed of 70 mph in a 45 mph zone was not a “de minimis” violation. Citing State v. Howard, 2008-Ohio-2241 (2d. Dist.), which found a speed 16 miles per hour over the speed limit was not a de minimis traffic violation. (Par. 11). The court further found the signs observed by the officer, including the strong odor of alcohol, glassy eyes, difficulty walking, and admission of alcohol consumption created a reasonable suspicion to detain the defendant for field sobriety tests. The court further found the defendant’s refusal to take any field sobriety tests was itself relevant and a factor that may be considered for the existence of probable cause for an OVI arrest. Citing State v. Wood, 2023-Ohio-3735 (2d. Dist.). (Par. 15).

Right to counsel

The defendant made requests to speak to an attorney before agreeing to submit to the breath test. The right to contact and consult with counsel is set out in R.C. 2935.20. In the present case the court held R.C. 2935.20 creates a statutory, not a constitutional right and therefore the exclusionary rule did not apply. (Par. 26).

The court held the defendant did not have a right to counsel under either the Fifth or Sixth Amendment of the United States Constitution or the comparable Ohio Constitution prior to taking the breath test. (Par. 25). Finding the defendant “possessed no federal or state constitutional right to consult with an attorney prior to his breathalyzer test, and R.C. 2935.20 provided no basis for suppression,” the conviction was affirmed. (Par. 27).

Right to refuse breath test

The defendant asserted the BAC level was coerced because he was told by the officer he was not allowed to refuse to take the breathalyzer tests. Relying on City of Westerville v. Cunningham, 15 Ohio St.2d 121 (1968), the court noted a person "accused of intoxication has no constitutional right to refuse to take a reasonably reliable chemical test for intoxication. (Paragraph two of the syllabus.) (Par. 20). The court in Allen went on to find that the defendant was deemed to have given his consent to a chemical test of his blood, breath, or urine upon his arrest for driving under the influence of alcohol. R.C. 4511.191(A)(2). (Par. 21).

The court relied on the portion of R.C. 4511.191(A)(5)(a), which stated, “the law enforcement officer shall request the person to submit, and the person shall submit, to a chemical test or tests of the person's whole blood, blood serum or plasma, breath, oral fluid, or urine[.]” (Emphasis added by the court, Par. 21). The court drew a comparison with the language in R.C. 4511.191(A)(5)(b), which provides that when a defendant refuses the breathalyzer, the police are entitled to take all reasonable steps to ensure that he submitted to a blood-alcohol test and concluded the defendant had no legal right to refuse the breathalyzer.

Aggravated vehicular homicide with OVI predicate offense

State v. Sperry, 2025-Ohio-2626 (12^th. Dist.). Convictions affirmed for two aggravated vehicular homicide charges, two aggravated vehicular assault, and three OVI charges, with the trial court merging several offenses at the time of sentencing. The defendant was travelling in the far most left lane I-71 at 124 miles per hour when his car collided with a car that was moving into the same lane to pass another car. The car was flipped from the collision, killing the driver and seriously injuring the passenger.

The defendant was in an ambulance when the police arrived. The defendant had an odor of alcohol. The defendant’s speech was “slow, slurred, and thick,” and his movements were "slow and lethargic at times," and appearing to be sedate and staring ahead. The defendant was released at the scene from the ambulance to the police. The defendant was given field sobriety tests, showing 6 out of 6 clues for the HGN and unable to successfully complete the remaining tests. The officer also tested for lack of convergence and eye lid tremors, both of which were present, and commonly associated with marijuana use. (Par. 8).

After his arrest the defendant refused a blood test, but a blood sample was obtained approximately three hours after the crash pursuant to a search warrant. The blood sample revealed the presence of alcohol, marijuana, marijuana metabolite, clonazepam, and clonazepam metabolite. The blood results showed a .029 blood/alcohol level, 12.47 nanograms of marijuana (over six times legal limit), and 369.75 nanograms of marijuana metabolite (five times over the legal limit) in addition to clonazepam and clonazepam metabolite. The toxicologist testified at trial the presence of marijuana in the blood suggested recent use. (Par. 10). The toxicologist also calculated the defendant's blood ethyl alcohol concentration at the time of the collision was in the range of 0.056-0.101 grams per 100 milliliters. (Par. 10). The defendant was found guilty of all charges by bench trial.

Impairment as the proximate cause of the collision.

R.C. 4511.19(A)(1)(a), which was the predicate offense for the homicide and assault charges, does not require a specific concentration of alcohol or drug of abuse, and a defendant's behavior is a primary consideration. By contrast, R.C. 4511.19(A)(1)(j) prohibits driving with a certain concentration of a controlled substance or metabolites of a controlled substance in one's urine or blood. (Par. 28, citation omitted.). In this case the defendant tested over the prohibited level of two nanograms of marijuana by blood, R.C. 4511.19(A)(1)(j)(viii) and 50 nanograms of marijuana metabolite by blood. R.C. 4511.19(A)(1)(j)(viii)(II).  

The court noted cause or "proximate cause" in criminal cases is identical to the definition of "proximate cause" in civil negligence cases and requires the defendant’s conduct

1) is a substantial factor in bringing about the harm, and

2) there is no other rule of law relieving the defendant of liability.

"Proximate cause does not require that the conduct of one defendant be the sole cause of a legal injury and there may be more than one proximate cause of an injury. (Par. 30, citations omitted.).   “A defendant will not escape liability merely because factors other than his own acts contributed to the death, so long as those factors were not the sole cause." State v. Quinn, 2025-Ohio-158, 54 (6th Dist.). In this case the defendant’s excessive speed was evidence of impairment, and the average driver who checks the rearview mirror before changing lanes would not see the defendant’s vehicle approaching at that speed. The evidence showed the defendant did not slow down or take any evasive action prior to the collision.⁵ (Par. 32). The court concluded the decedent’s changing lanes into the defendant’s path did not prevent the defendant’s impairment from being the proximate cause of the decedent’s death. (Par. 31).

Blood level calculations

At trial the toxicologist calculated the defendant’s blood/alcohol level at the time of the collision by considering

1) The defendant had absorbed into his bloodstream all consumed alcohol by the time of the collision and had not consumed any alcohol shortly before the collision,

2) the defendant eliminated the alcohol from his bloodstream at a rate of between 0.010 g/100 mL/hour and 0.025 g/100mL/hour, and

3) the defendant did not consume any alcohol between the time of the collision and the time his blood was drawn.

Although the court noted from the evidence that the calculations were not based on information or knowledge specific to the defendant, the assumptions used in the analysis goes to the weight, and not the admissibility of the testimony. (Par. 32).

Questions by judge

At the trial the judge questioned the officer on the time and distance between the two cars at the speeds set out in the evidence. A trial court may question a witness concerning matters that are clearly relevant to the independent determinations which the court is called upon to make as long as it is done in an impartial manner. Impartial questions that attempt to clarify the testimony and are directed to relevant factual issues are permitted under Evid.R. 614(B). A trial court's questioning of a witness is not deemed partial merely because the evidence elicited during the questioning is damaging to one of the parties. (Par. 48, citations omitted.). Moreover, as a bench trial, a trial court is accorded greater flexibility in questioning witnesses because when there is no jury. (Par. 50). The court held the trial court did not abandon its impartial role and engaged in advocacy when it questioned the officer.

OVI issues

1. Basis for field sobriety tests and OVI arrest

State v. Benson, 2025-Ohio-2699 (5^th. Dist.). OVI conviction and order overruling a motion to suppress were affirmed. The defendant was stopped for speeding and tinted windows. As he approached, the officer noticed the defendant’s bloodshot and glassy eyes and an odor of alcohol was coming from the vehicle. The defendant admitted to drinking one beer and had taken Vicodin for an elbow injury. Based on the field sobriety test results, the defendant was arrested and charged with R.C. 4511.19(A)(1)(a) (operating under the influence) and R.C. 4511.19(A)(1)(d) (low tier prohibited BAC). The defendant filed a motion to suppress, asserting lack of probable cause for an arrest. A hearing was held and the motion was overruled. The defendant entered a plea of no contest to one OVI charge.

On appeal, the defendant asserted probable cause for arrest is based on the totality of the circumstances under the Evans test, which was applied in State v. Shulo, 2011-Ohio-1619 (5^th. Dist.).⁶ The court noted, however, that the factors test out in State v. Evans applied to the decision to conduct field sobriety tests, not probable cause for an OVI arrest.

The standard for determining whether the police have probable cause to arrest an individual for OVI is whether, at the moment of arrest, the police had sufficient information, derived from a reasonable trustworthy source of facts and circumstances, to cause a prudent person to believe that the suspect was driving under the influence. State v. Strope, 2009-Ohio-3849 (5th Dist.). In the present case the court found probable cause for the arrest from,

1. Speed of the vehicle,

2. Defendant’s bloodshot and glassy eyes,

3. Alcohol odor,

4. Admission of drinking and taking Vicodin,

5. Defendant seemed lost and confused about where he was,

6. 6 out of 6 clues on HGN test,

7. 3 out of 8 clues on walk and turn test,

8. 2 clues and swaying during the one leg stand test.

2. Weight and sufficiency of evidence

State v. Burke, 2025-Ohio-2426 (5^th. Dist.). OVI conviction was affirmed. The officer made a traffic stop after seeing several marked lane violations. As the officer walked towards the car, he saw movement inside, but not clear due to time of night and heavily tinted windows. When he got to the vehicle, the defendant was in the driver’s seat with two males in the car. Although the officer suspected the back seat occupant was the driver, the defendant stated she had been driving.

Due to her slurred speech, the defendant was asked to get out of the vehicle to perform field sobriety tests. As she was getting out, she momentarily lost her balance and leaned on the car door for support. (Par. 5). Once out of the car the officer noticed bloodshot eyes and an odor of an alcoholic beverage from the defendant. After refusing the field sobriety tests, the defendant was arrested for OVI. The defendant was convicted of the OVI and other charges after a jury trial.

Right to a fair jury trial.

The defendant asserted she was denied a trial on the basis of race with an all-white jury. The court noted that to establish a violation of the Sixth and Fourteenth Amendments to the United States Constitution, a defendant must prove that:

1) the group alleged to be excluded is a 'distinctive' group in the community;

2) the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community, and

3) the representation is due to systematic exclusion of the group in the jury-selection process. 

State v. Fulton, 57 Ohio St.3d 120 (1991), paragraph two of the syllabus. (Par. 20.). While the court recognized the defendant was a member of a distinctive group in the community, she did not argue or present any evidence demonstrating

1)African Americans were underrepresented on the venire in relation to their percentage in the community, or

2) African Americans have been systematically excluded from the jury-selection process.

Sufficiency of evidence.

The test for sufficiency of the evidence is whether the evidence, if believed, would convince the average mind of the defendant's guilt beyond a reasonable doubt. (Par. 13, citations omitted.). In the present case the court found the evidence of the weaving vehicle, smell of alcohol, admission of drinking, slurred speech, bloodshot eyes, unsteadiness getting out of the car, confusion, and after arrest, disruptive behavior was sufficient to show alcohol impairment and a conviction for OVI.

Weight of the evidence.

When determining if a conviction is against the manifest weight of the evidence, the appellate court reviews the entire record, weighs the evidence and all reasonable inferences, considers the credibility of witnesses, and determines whether in resolving conflicts in the evidence, the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be overturned and a new trial ordered. (Par. 24, citations omitted.). At the trial the defendant testified that one of the male passengers, not her, was the driver and they swapped seats before the officer got to the car. (Par. 26). In response the prosecutor argued although dark, there was insufficient time for a seat change before the officer got to the car. Also, the defendant admitted at the scene she was the driver. The court held the identity of the driver was a factual issue for the jury to decide based on the credibility of the witnesses. Finding a rational basis exists in the record to support a finding the defendant was the driver, the court affirmed the conviction.

Misdemeanor sentencing factors

State v. Fischer, 2025-Ohio-2551 (9^th. Dist.). A sentence imposed for OVI conviction was affirmed. The defendant entered a no contest plea to a first offense OVI charge with the balance of the remaining charges dismissed. After a presentence report, the trial court imposed a three day, jail alternative program with one year probation. A fine and driver’s license suspension were also imposed. Although the defendant did not have a prior OVI conviction, the case had been referred for a presentence report due to other past alcohol related convictions.

The defendant argued on appeal that the trial court did not refer to the principles of sentencing as set out in R.C. 2929.21 and R.C. 2929.22. Both of these statutes refer to the court’s discretion. The court noted, however, that the OVI penalties were statutorily mandated by R.C. 4511.19(G)(1)(a)(i) and therefore no discretion is involved. (Par. 10). Moreover, R.C. 2929.22(A) specifically excludes OVI sentences as governed by R.C. 4511.19(G). Notwithstanding the mandatory aspects of the defendant’s sentence, the court also found the trial court not only specifically referred to R.C. 2929.22 at the time of sentencing, but also the court’s reference to the presentence report supported the presumption that the court considered the required statutory criteria. (Par. 9).

State v. Kirkendall, 2025-Ohio-2497 (1^st. Dist.). A sentence imposing house arrest for five years as a probation condition with only release for treatment was reversed. The defendant was convicted of aggravated menacing. The conviction arose out of Facebook threats the defendant made to Walmart employees after being fired. The defendant was intoxicated at the time and turned himself in after the Facebook post went viral and appeared on the evening television news.

At sentencing, the defendant was given a 180 day suspended sentence with five years’ probation with 24/7 house arrest and electronic monitoring. As part of his sentence, the defendant was required to enroll in mental health and substance abuse treatment and only allowed to leave the house to attend treatment sessions.⁷ After the defendant filed his notice of appeal the trial court modified the sentence to permit the defendant’s release from house arrest for school, to look for a job, and employment purposes if the defendant obtains a job. (Par. 11).

On appeal the court recognized a trial court has broad imposing community control conditions but limited to any statutory restrictions. R.C. 2929.27(A)(2) authorizes house arrest with electronic monitoring as a probation condition. R.C. 2929.01(P)(1), however, provides an exclusion “for periods of time during which the offender is at the offender's place of employment or at other premises as authorized by the sentencing court …” The court noted the phrase, “ as authorized by the sentencing court” was limited to “other premises.” (Par. 20-22). In other words, a house arrest sanction has a built in statutory exception for work release. The court reversed the sentence and remanded the case to the trial court to resentence with work release for any period of house arrest.

After the notice of appeal was filed the trial court attempted to modify the probation conditions to conform with the statute, but was divested of jurisdiction to do so. “When a case has been appealed, the trial court retains all jurisdiction not inconsistent with the court of appeals' jurisdiction to reverse, modify, or affirm the judgment.” Yee v. Erie Cty. Sheriff's Dept., 51 Ohio St.3d 43 (1990), quoting In re Kurtzhalz, 141 Ohio St. 432 (1943). The court found the trial court’s attempt to modify the sentence was correct, but could not be done until the case was remanded from the court of appeals. (fn.1).

Author’s Note: Other than a first offense within ten years, a court may impose half of the mandatory jail sentence and impose house arrest or continuous alcohol monitoring when the court issues written findings that the defendant would not be able to begin serving that term within the sixty-day period following the date of sentencing. R.C. 4511.19(G)(3). The work release exception set out in R.C. 2929.01(P) also applies when the court imposes house arrest for an OVI offense.

State v. Dawes, 2025-Ohio-2576. (6^th. Dist.). Consecutive sentences for two first degree misdemeanors were reversed. The defendant was stopped for speeding and lack of use of turn signal. The officer smelled burnt marijuana when he approached the car which the defendant /driver explained that he had a medical marijuana card.⁸ After a search of the vehicle revealed seven pounds of marijuana flower products and nine pounds of THC gummies and edible products, the defendant and the passenger were indicted for marijuana possession, a third degree felony. The charge was subsequently dismissed with two first degree misdemeanor charges, possession of criminal tools and attempted marijuana possession, filed in the municipal court. The defendant entered guilty pleas to both charges and the case was passed for a presentence report.

At the sentencing hearing the defendant had not fully provided the presentence information based on his position that probation was not necessary. The trial court noted the defendant’s lack of coming forward with information about the offense by the defendant’s refusal at the time of the stop to give his cell phone to the officer when asked. The trial court imposed two consectutive180 day sentences for a total of 360 days in jail.

The appellate court noted a misdemeanor sentence that falls within the permissible statutory limits is presumed to be lawful, but must comply with the statutory misdemeanor sentencing guidelines.⁹ In this case the court of appeals noted the trial court’s sentence appeared to be based on the defendant’s refusal to give his phone to the police when arrested, which was not a recognized aggravating sentencing factor. (Par. 15). Moreover, the defendant had a constitutional right to refuse to turn over the cell phone asserting his right against self-incrimination. (Par. 14). The case was remanded to the trial court for re-sentencing.

Author’s Note: Common pleas courts have concurrent jurisdictions with municipal and county courts for misdemeanor offenses. When an indictment contains misdemeanor only misdemeanor offenses, the common pleas administrative judge may transfer the case within fourteen days from the date the indictment is filed with the clerk to a municipal or county court with the proper venue. Crim. R. 21(A). The transfer procedure applies to the entire case, not a partial transfer of offenses.

In State v. Parker, 2007-Ohio-1534, the Ohio Supreme Court noted that separating misdemeanor offenses in a municipal court with felony offenses arising out of the same set of circumstances in the common pleas court was not an acceptable practice. (Par. 29). In Parker the felony charges were dismissed on speedy trial basis because the defendant was held in jail on the related misdemeanor charges in the municipal court even though released on bond by the common pleas court on the felony charges.

Procedural issues.

1. Right of allocution

State v. Riley, 2025-Ohio-2439 (5^th. Dist.). A conviction for failure to comply with an order or signal of a police officer was affirmed. The issue on appeal was the defendant’s right of allocution in compliance with Criminal Rule 32(A)(1). The right of allocution is afforded under state law to give the defendant a last opportunity to plead his case, express remorse, speak on his own behalf and/or present any information in mitigation of punishment. (Par. 9-10, citations omitted.).

At the sentencing hearing the trial court asked, “Is there anything sir that you or your attorney wish to say prior to sentencing?" (Par. 14). The defendant asserted that by the use of the term “or” the trial court limited the right to make a statement at sentencing to either defense counsel or the defendant. The appellate court held, however, that the trial court’s language included rather than limited defense counsel and the defendant the right to make a statement. The appellate court noted the trial court personally addressed the defendant and asked if he wished to make a statement in compliance with Criminal Rule 32.

Clerical error.

The judgment entry mistakenly referred to a finding of guilt based on a guilty plea and not the jury verdict. Acknowledging the mistake, the appellate court found it was a clerical error under Criminal Rule 36 and not grounds for remand or resentencing. The court noted a clerical error or mistake refers to "a mistake or omission, mechanical in nature and apparent on the record, which does not involve a legal decision or judgment."  (Par. 31, citations omitted.). Although a trial court lacks authority to reconsider its own valid, final judgment in a criminal case, the trial court has the authority to correct clerical errors in its own judgment entries. (Par. 32, citations omitted.).

2. Presentence motion to withdraw plea

State v. Neal, 2025-Ohio-2499 (1^st. Dist.). An order overruling the defendant’s motion to withdraw presentence guilty plea to an OVI charge was affirmed. The defendant was charged with operating a vehicle under the influence and refusal with a prior OVI conviction. The defendant, with retained counsel, entered a guilty plea to the OVI refusal charge with the other OVI charge dismissed. The case was passed for sentencing. During that time the defendant discharged his attorney and hired new counsel. At the time of the sentencing the new counsel made an oral motion to withdraw the guilty plea because he was recently retained and had not reviewed the discovery. The trial court denied the motion but continued the sentencing to permit defense counsel to prepare any mitigation to sentence. During that time defense counsel filed a written motion to withdraw the plea which was overruled by the trial court at the sentencing hearing.

On appeal the court noted that while a presentence motion to withdraw a guilty plea should be freely and liberally granted, there is no absolute right to withdraw a plea even when the motion is made prior to sentencing. Citing State v. Rosemond, 2023-Ohio-848 (1st Dist.) and Crim.R. 32.1. (Par. 18). When a motion to withdraw a guilty or no contest plea is made, the court is not required to conduct an evidentiary hearing unless warranted by a factual issue. The court is required to provide the defendant an opportunity, by separate hearing or at sentence to explain the basis for the motion.

Citing State v. Fish, 104 App.3d 236, 240 (1st Dist. 1995), the factors to be considered when deciding a motion to withdraw a plea are whether:

1) the defendant was represented by highly competent counsel;

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

3) the trial court conducted a full and impartial hearing on the motion to withdraw;

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

5) the motion was made within a reasonable time;

6) the motion included specific reasons for withdrawing the plea;

7) the defendant understood the charges and possible penalties;

8) the defendant had a complete defense to the charges; and

9) the state would be prejudiced by the withdrawal.

(Par. 19). This is a non-exhaustive list and no single factor controls. A change of heart, however, is not sufficient justification to withdraw a guilty plea. State v. Conley, 2024-Ohio-4985 (1st Dist.). (Par. 19).

In the present case the appellate court found the trial court fully complied with the requirements of Criminal Rule 11 and made sure the defendant fully understood the nature of the charge and the possible penalties.¹⁰ (Par. 22). The grounds raised by the defendant was that prior counsel had not shared discovery with the defendant’s new counsel. Although the court had continued the sentencing, defense counsel had not sought any discovery. In the absence of any evidence of possible defenses or proof the defendant was not fully informed of the merits of the case by prior counsel, the court affirmed the trial court’s denial of the motion to withdraw.

3. Motion for intervention in lieu of conviction

State v. Hayes, 2025-Ohio-2483 (3d. Dist.). Felony drug convictions affirmed. The defendant was indicted on third degree felony offenses. After the court overruled the defendant’s motion to suppress, the defendant entered a no contest pleas to all charges and was found guilty. On appeal the defendant asserts the trial court should have permitted the defendant to participate in intervention in lieu of conviction (ILC).

The appellate court noted R.C. 2951.041(B)(2) bars a defendant from ILC for first, second and third degree felony offenses. The defendant asserted R.C. 2951.041(B)(3) only barred first and second degree felony offenses for violations of R.C. 2925.11. Relying on State v. Seawell, 2020-Ohio-155 (12th Dist.), the court noted R.C. 2951.041(B)(2) is "specific to the offenses to which one pleads guilty" whereas R.C. 2951.041(B)(3) is "specific to the charges brought against an offender regardless of his or her ultimate plea.” As such, the defendant must be meet the requirements of both subsections to be eligible for ILC. (Par. 31).

In this case the defendant did not formally apply for ILC, but instead, filed a motion with the trial court for a determination if he was eligible for ILC. (Par. 32). The trial court deferred ruling on the motion until it was determined the type and level of the charges to which the defendant would plead guilty. The appellate court held the defendant did not file a motion for ILC, but instead a request for an advisory opinion on his eligibility for ILC. (Par. 34). Although no motion to withdraw was filed, the defendant entered no contest plea to the charges. Therefore, the trial court did not deny the motion of ILC. The court also noted the defendant entered a no contest plea to the charges and R.C. 2951.041 (A)(1) and (C) require guilty pleas.

Vehicle forfeiture, R.C. 2981.09

State v. Adams, 2025-Ohio-2371 (6^th. Dist.) A conviction for obstruction of official business, a felony of the fifth degree, and failure to comply with the order or signal of a police officer, were affirmed with reversal on the issue of vehicle forfeiture, with acquittal in the trial court of two OVI charges, operating a vehicle under the influence and prior refusal. The officer saw the defendant crossing the stop bar before stopping at an intersection. The officer followed the defendant as he turned into a bar parking lot without a turn signal and made a traffic stop. At the stop the officer detected an odor of alcohol and observed that appellant's eyes were glassy. When the officer asked the defendant to get out of the truck, the defendant refused to do so, rolled up his window, and locked the door. When the officer called for backup and used a baton to break the truck window, the defendant backed into the officer’s car and sped through the parking lot onto the road.

The defendant’s flight triggered a nine-mile, high speed police pursuit involving five law enforcement agencies, all traveling late at night down narrow country roads, lined by ditches, going through several towns. (Par. 9). The defendant drove around 80 miles per hour, running stop signs, and causing other cars to pull to the side of the road to avoid the defendant. (Par. 20, 23). The defendant would slow down from time to time, signaling the end of the chase, but then accelerate. The defendant ultimately stopped. After his arrest he refused the breathalyzer.

The court of appeals held there was sufficient evidence to support the convictions and the two offense were not allied offenses. As part of the sentence, however, the trial court ordered the forfeiture of the defendant’s pickup truck. R.C. 2981.09(A) prohibits the forfeiture of property used in a criminal offense when the amount or value of the property is disproportionate to the severity of the offense. By statute the burden is on the prosecutor. In the present case the trial court did not conduct a hearing prior to the forfeiture order, but ordered the forfeiture upon request of the prosecutor. Due to the lack of evidence or determination of proportionality to the severity of the offense, the case was remanded for the limited purpose of remand to the trial court to perform the required R.C. 2981.09(A) proportionality review.

Post conviction issues

1. Community control revocation

State v. Rogers, 2025-Ohio-2397 (11^th. Dist.) . Community control revocation order was affirmed. The defendant was unsuccessfully terminated from a residential substance abuse treatment program that was required as a community control supervision condition. At a probation violation hearing the defendant and her probation officer testified.¹¹ The probation officer testified that the defendant had refused to participate in the treatment program. The defendant asserted she had developed kidney stones and after a few days with no medical treatment, left the facility. The trial court continued the hearing due to a scheduling conflict, but asked for information from the treatment program for the next hearing because of the conflicting information provided at the hearing. At a subsequent hearing the director of the treatment center testified that she was aware of the medical complaints raised by the defendant, that the defendant saw a nurse about the complaints five times in eight days, and a urology screen was ordered but not completed due to the defendant leaving the facility. Based on all the evidence, the court found a community control supervision violation and imposed the balance of the suspended incarceration.

On appeal the defendant asserted the trial court was not permitted to request additional evidence after the prosecutor presented the case for probation violation. The appellate court noted "A community control revocation hearing is not a criminal trial, so the state is not required to establish a violation of the terms of the community control beyond a reasonable doubt." (Par. 15, citations omitted.) The standard of review on appeal is abuse of discretion. (Par. 16) The privilege of community control rests upon a defendant's compliance with the conditions of community control and any violation of those conditions may properly be used to revoke the privilege." (Par. 17).

A probation violation hearing is an informal proceeding which permits the trier of fact to consider any reliable and relevant evidence to determine whether the probationer has violated the conditions of his probation." The Rules of Evidence to not apply, but the court must ensure the hearing still comport with due process requirements, including notice, the right to be heard, call witnesses, and cross examine adverse witnesses. (Par. 20,26, citations omitted.). In this case the trial court gave both parties the opportunity to present additional evidence on the defendant’s claim that she was denied adequate medical care while at the treatment program. The defendant was given the opportunity to present additional evidence concerning her medical condition and confront and cross examine the medical director called by the prosecution. As such, the appellate court found no due process violation and upheld the trial court’s findings.

2. Reduction of prison sentence

United States v. Jones, Case No. 5:20CR171, 2025 U.S. Dist. LEXIS 128806, 2025 WL 1881948 (N.D. Ohio 2025). Defendant’s motion to reduce prison sentence was overruled. The defendant was convicted of drug trafficking charges.

The court noted that while in prison, the defendant participated in numerous programs, maintained employment, and avoided disciplinary infractions, but found these post-conviction actions were insufficient to overcome the defendant’s underlying conduct and history. The court noted that the defendant had been arrested passed out in a car and unable to complete field sobriety tests. When arrested he was carrying a loaded firearm, two cell phones, and a false driver’s license issued from Nevada. A subsequent search of the car revealed sixteen bags containing methamphetamine, five bags of marijuana, LSD, and a mixture and substance containing heroin and fentanyl. There was also a scale and drug paraphernalia. At the time of his sentencing the defendant also had unrelated charges pending from a police chase in which he had been drinking and with marijuana, an unknown white powder, and more than $30,000 in U.S. currency.

Although the court commends the defendant’s actions while incarcerated, the court denied the motion, stating the defendant was a substantial drug dealer causing untold amount of heartache to members of the community. In addition to his drug dealing, the defendant demonstrated numerous times “a willingness to drive while under the influence and ignore the orders of law enforcement - only heightening the risks to the community of his conduct.” Based on the foregoing the motion to reduce the sentence was overruled.