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Traffic Signals — December 2025

TRAFFIC SIGNALS NEWSLETTER

Dear Colleagues,January 7, 2026

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 call or email me with any feedback.

Patrick Carroll, retired judge

Ohio Judicial Outreach Liaison to the ABA

Carrolljol26@gmail.com

(216) 403-5521

1. Supreme Court of Ohio

State v. Balmert, 2025-Ohio-5588. (6-1 decision). Aggravated vehicular assault conviction based on marijuana metabolite level was affirmed. The defendant struck a highway patrol officer while the officer was directing traffic during daylight hours and dry weather conditions. Field sobriety tests were conducted and the defendant submitted to a urine test. The defendant told the officer he uses hemp, including the morning of the collision. The urine test results showed a concentration of marijuana metabolites in excess of the per se limit.

The defendant was indicted for 1) aggravated vehicular assault under R.C. 2903.08(A)(1)(a); 2) vehicular assault under R.C. 2903.08(A)(2)(b); 3) operating a vehicle while under the influence of alcohol, a drug of abuse, or a combination of them under R.C. 4511.19(A)(1)(a); and 4) operating a vehicle while under the influence of a listed controlled substance or a listed metabolite of a controlled substance under R.C. 4511.19(A)(1)(j)(viii)(II).

At a bench trial the defendant was found guilty of operating a vehicle with marijuana metabolites above the legal limit, but not guilty of driving while impaired. Based on the marijuana metabolite OVI conviction, the defendant was also found guilty of aggravated vehicular assault.

The defendant argued on appeal that although he had a prohibited marijuana metabolite levels in his urine, the OVI was not the proximate cause of the collision. Under R.C. 2903.08(A)(1)(a) an element of the offense includes the injury is the proximate result of committing a violation of R.C. 4511.19(A) or of a substantially equivalent municipal ordinance.

The Court recognized proximate cause is the same as proximate result and a separate and distinct element required for an aggravated-vehicular-assault conviction. “Proximate cause” is limited to those causes which are so closely connected with the result and of such significance that the law is justified in imposing liability." Johnson v. Univ. Hosps. of Cleveland, 44 Ohio St.3d 49, 57 (1989).

The issue in Balmert was whether the harm to a person on the road was a foreseeable consequence of driving while having a concentration of marijuana metabolites in excess of the legal limit, in violation of R.C. 4511.19(A)(1)(j)(viii)(II). At the trial two drug recognition expert (DRE) officers testified that marijuana

1. depresses a user's reflexes and slows reaction time, which can impair the user's ability to drive, especially in a situation calling for greater attentiveness, and

2. affects a user's depth and space perception as well as the user's ability to concentrate.

The Court concluded, based on testimony of the effects of marijuana use on the ability to drive, the officers' observations of the defendant at the scene, and the circumstances of the collision, there was sufficient evidence for the trier of fact to determine the collision was the proximate result of marijuana use. In arriving at this conclusion, the Court cautioned that it was not creating a strict liability offense based solely on the concentration of marijuana metabolites in a defendant’s urine that exceeds the amount proscribed. (Par. 18). The Court also noted, however, the collision could be the foreseeable result of marijuana effects on driving even if the defendant was not under the influence for purposes of R.C. 4511.19(A)(1)(a). (Par. 19).

The dissent noted driving with that concentration of marijuana metabolites is not the same as impaired or driving in an unsafe manner. (Par. 29). The metabolites detected in a person’s urine indicate only that he had used marijuana, not that he was impaired by it.  (Par. 30).

Marijuana metabolites prove only that a THC-based substance was used and not that the person was actively impaired when the collision occurred. The dissent argued the statutorily prohibited level of a nonactive "breakdown product" of marijuana in the defendant’s system was not sufficient to show it was the required proximate result of the collision.

2. Ohio court of appeals decisions.

OVI Mandatory sentencing

1. Mandatory minimum OVI fine is not waivable.

State v. Vanvalkenburg, 2025-Ohio-5580 (5^th. Dist.). OVI conviction was affirmed but reversed for resentencing on issue of mandatory fines. The defendant plead guilty to two felony OVI counts, R.C. 4511.19(A)(1)(a) (impaired driving) and R.C. 4511.19(A)(1)(d) (low tier alcohol BAC per se violation) with five prior convictions within the past twenty years. The two OVI counts were merged for sentencing and a twenty four month sentence was imposed. The court imposed a fine of $1,350, which was less than the statutory minimum amount for that offense. Over objection by the prosecutor, the court determined the defendant was indigent and waived the mandatory fine.

The prosecution appealed the amount and waiver of the OVI fines. Reviewing prior appellate decisions, the court noted there was no ambiguity in either R.C. 4511.99(A)(4) or R.C. 2929.18(B)(3) on the trial court's duty to impose the mandatory fine for a violation of R.C. 4511.19(A)(1). As a result, a trial court had no discretion to waive the fine associated with a fourth degree OVI felony conviction. (Par. 9, citations omitted.).

The court recognized the exclusive power held by the General Assembly to prescribe punishment for crimes committed in Ohio, citing State v. Rush, 83 Ohio St.3d 53, 57 (1998).  Due to its plenary power over such matters, if the General Assembly intended to permit waiver of a mandatory fine, the legislature could have included waiver language in the relevant statutory division itself. (Par. 9). The court in the present case found the imposition of a fine in a felony OVI case was mandatory, and the trial court did not have discretion to waive the fine.

The trial court imposed a sentence contrary to law by assessing a fine less than the statutorily mandatory minimum fine and/or waiving that fine. The case was reversed and remanded for the court to impose a fine within the statutory range for this offense.

State v. Solomon, 2025-Ohio-5423 (10^th. Dist.). Felony OVI conviction reversed on sentencing issue after trial court waived mandatory fine. At the time of the sentencing the trial court considered the defendant’s ability to pay, found the defendant to be indigent, and waived the mandatory fine.

On appeal by the state, the appellate court held although R.C. 2929.18(B)(1), permitting a mandatory fine to be waived when a defendant is found indigent, did not apply to OVI offenses under R.C. 4511.19.¹ (Par. 5, citations omitted.). In the absence of any statutory authority, the trial court could not waive a mandatory fine imposed by statute.

2. Alternate jail sentence requires court certification.

State v. Tower, 2025-Ohio-5593 (5^th. Dist.). OVI conviction affirmed, but reversed on sentencing issue. A Taco Bell employee called the police dispatcher about an intoxicated driver in the drive thru line. The employee identified herself by name and her location at the restaurant was verified by her cell phone. She reported the driver had an open container of alcohol between his legs and was yelling inside the car. In an attempt to detain the defendant until the police arrived, the driver was told his order was delayed. The defendant became more upset and went to a drive thru of an adjacent White Castle. At the White Castle, the officer determined only one car matched the description given to the dispatcher and approached the vehicle. The defendant was subsequently charged with R.C. 4511.19(A)(1)(a) (impaired driving) and R.C. 4511.19(A)(1)(i) (prohibited urine level).

After a motion to suppress was overruled, the defendant entered a no contest plea to R.C. 4511.19(A)(1)(i) and sentenced to ten days in jail and thirty six days house arrest. Both sides appealed the trial court’s judgment.

Defendant’s appeal.

The defendant asserted on appeal that the employee was not a reliable citizen informant Reasonable cause for an investigative stop is not limited to an officer’s personal observations and can be based on information supplied by another person. Navarette v. California, 572 U.S. 393, 397 (2014) (Par. 14). Citing Maumee v. Weisner, 87 Ohio St.3d 295, 299 (1999), “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.” The issue is whether the tip itself has sufficient indicia of reliability to justify the investigative stop.

Factors to consider on the reliability of the tipster include:

• identification of the tipster,

• whether the tipster personally observed the crime being reported,

• whether the tipster identified himself or herself,

• whether the tipster used the 911 emergency system,

• whether the tip was about a past or presently occurring crime,

• whether the tip contained particularized details and predictive information, and

• any motivation the tipster may have had in conveying the tip.

In the present case the court found the employee was reliable based on her self-identification, including first and last name, verification of location, real time observations of defendant’s behavior, an open alcohol container in the car, and continual observation of the defendant until the police arrived. (Par. 19). Based on the information provided, the officer had a reasonable and articulable suspicion of criminal activity to stop the defendant’s car.

Appeal by the State.

On cross appeal, the prosecution asserted the defendant did not qualify for an alternative minimum sentence. A conviction under R.C. 4511.19(A)(1)(i) with a prior OVI conviction within ten years, the trial court must sentence the offender to a mandatory jail term of at least twenty consecutive days. R.C. 4511.19(G)(3) the court may impose an alternative sentence that includes a term of house arrest with electronic monitoring, with continuous alcohol monitoring, or with both electronic monitoring and continuous alcohol monitoring if “the court issues a written finding on the record that, due to the unavailability of space at the jail where the offender is required to serve the term, the offender will not be able to begin serving that term within the sixty-day period following the date of sentencing” (emphasis added.).

The appellate court found it was error to impose the alternative jail sentence without making the required finding of unavailability of jail space. Although the trial court raised an issue of the defendant’s health, it is not a statutory factor to permit the court to impose an alternate jail sentence. The case was reversed for resentencing.

Other sentencing issues.

1. OVI and aggravated vehicular assault not allied offenses.

State v. Hurley, 2025-Ohio-5432 (2d. Dist.). OVI and aggravated vehicular assault convictions were affirmed. The defendant struck a tree while driving impaired resulting in serious injuries to his passenger. The defendant entered guilty pleas to both charges and argued at sentencing that they should be merged as allied offenses.

Rejecting this argument, the court relied on State v. Earley, 2015-Ohio-4615, which recognized the difference between the elements of the two offenses in that aggravated vehicular assault requires serious physical harm to a person where OVI involves driving impaired, regardless of whether anyone was injured from the offense. Citing the decision in Early, the court noted there was a legitimate justification for criminalizing each of these offenses separately. (Par. 8).

2. Prior convictions.

State v. Nevels, 2025-Ohio-5685 (3d. Dist.). Felony OVI conviction and sentence consecutive to other, unrelated case, was affirmed. After crossing into another lane of traffic narrowly missing other vehicles, the defendant was stopped by the police. After arrest for OVI, the defendant refused to submit to a chemical test. The defendant was on community control supervision at the time for another OVI conviction.

The defendant was charged with two fourth degree OVI felony offenses, R.C. 4511.19(A)(2)(a), (A)(2)(b), and (G)(1)(d), and R.C. 4511.19(A)(1)(f) and (G)(1)(d), a fourth-degree felony, and one count of identity fraud in violation of R.C. 2913.49(B)(1). The defendant later entered a guilty plea to one count of OVI in violation of R.C. 4511.19(A)(2)(a),  (A)(2)(b), and (G)(1)(d), a fourth-degree felony with the remaining charges dismissed. Reviewing a presentence report from a prior conviction in 2017, the trial court imposed a twelve month prison term, consecutive to a prison term that had been imposed in another case against him.

Reviewing the standard for imposing consecutive felony sentence under R.C. 2929.14(C)(4), the trial court made finding that the defendant had three OVI convictions prior to the instant offense, failed to complete treatment for his substance abuse issues, and had not responded favorably to previous sanctions for this conduct. (Par. 10). The trial court also noted the present offense was rendered more serious by the fact that the defendant had been convicted for three other OVI offenses in the eighteen months prior to his indictment in this case and was on community control at the time of one of the OVI offenses.

The defendant asserted the 2017 presentence report did not reflect his 2021 and 2022 OVI convictions, and therefore, the court could not rely on this report for consecutive sentencing factors. The appellate court there was no 2022 presentence report because the defendant had waived it to go right to sentencing. The court noted at the time of the sentencing, the defendant acknowledged the prior OVI convictions.² As such the record adequately set out the three prior convictions for the court to consider when deciding to impose a consecutive sentence.

3. Recommended sentence not binding on court.

State v. Kennedy, 2025-Ohio-5581 (5^th. Dist.). Convictions for drug trafficking, having weapons while under disability, and OVI were affirmed.³ Police officers discovered the defendant passed out behind the wheel of a running car. The officers detected the odor of alcohol and ultimately found the defendant in possession of more than eight but less than nine grams of fentanyl, a handgun, a scale, and $1,820 in U.S. currency.

The defendant entered no contest pleas to trafficking in a fentanyl-related compound, having weapons while under disability, and OVI with the remaining charges dismissed. The trial court imposed consecutive sentences on the two third degree felony offense plus a one year term on the firearm specification.

Waiver of fines.

On appeal the defendant asserted the mandatory fines should have been suspended based on the defendant’s ability to pay. In this case the court did not distinguish between the mandatory fine for a drug offense and an OVI offense. R.C. 2929.18(B)(1) permits the court to suspend a mandatory drug fine upon timely filing of an affidavit that the defendant is indigent and the court makes a finding of indigency.⁴ In the present case the court noted the determination to suspend fines is based on the defendant’s present and future ability to pay. State v. Gipson, 1988-Ohio-569. In the present case the court found, based on the defendant’s recent employment and cash in his possession, he was not entitled to waiver of the mandatory fines.

Author’s note: Because there is no statutory authority to waive a mandatory OVI fine, consideration of the defendant’s ability to pay is limited to imposition of fines greater than the mandatory minimum fine.

Agreed recommended sentence.

Although the defense and prosecutor jointly recommended a three year sentence, the trial court was not bound by the recommendation. Crim. R. 11 expressly contemplates that sentencing lies within the court's discretion. (Par. 32, citations omitted.). In this case the trial court explained to the defendant at the time of the plea the joint sentencing recommendation and that the judge was not bound by that recommendation. As such, a sentence greater than the recommended sentence was not grounds to withdraw the no contest plea.

Sufficiency of evidence.

1. Evidence sufficient for conviction.

State v. Maynard, 2025-Ohio-5379 (5^th. Dist.). Convictions for OVI and obstruction of official business were affirmed. This case arose out of a welfare check when the officer saw a truck in the side of the interstate highway. The defendant and his brother were next to the truck with the brother pouring gas into the truck. From his interaction with the defendant, the defendant was arrested for OVI. The defendant refused any chemical test and was taken to a hospital for a blood draw. A search warrant was obtained, but the defendant refused to cooperate for the blood draw. Officers had to restrain the defendant while a phlebotomist withdrew some blood from him.

The defendant was indicted on felony OVI offenses under R.C. 4511.19(A)(1)(a), R.C. 4511.19(A)(1)(f) (whole-blood test result above the .17 high-test limit), and obstruction of official business. The two OVI charges were severed for trial and the defendant was found guilty of the OVI and obstruction charges.

OVI operation.

The defendant challenged the OVI conviction on the grounds there was no evidence of his operating the vehicle. The court found although no witness at the trial testified to having seen the defendant drive the vehicle on the evening in question, there was an abundant circumstantial evidence to support the conviction. Evidence was presented at trial that the defendant was the owner of the vehicle and that he had called his brother because he had run out of gas. The defendant gave his brother the location of the truck.

The officer who arrived at the scene noted the defendant had bloodshot eyes, slow and slurred speech lethargic was slow and slurred, movements, and a strong odor of alcohol was on his breath. (Par. 15). The engine in the truck was still warm, suggesting recent operation, and there were partially open containers in the truck that were cold. There was only the defendant’s brother near the truck, who had arrived by a different vehicle. As such there was sufficient circumstantial evidence to support the finding that the defendant was operating the vehicle under the influence.

Impairment while driving.

Although the defendant asserted he parked the car and went for a drink while waiting for the officer, this defense was not raised in the trial court. The court noted the defendant’s after the fact drinking assertion was contrary to his denial at the scene of having been drinking. Moreover, when circumstantial evidence is presented to prove an essential element of the offense charged, there is no need for such evidence to be irreconcilable with any reasonable theory of innocence in order to support a conviction. State v. Jenks, 61 Ohio St. 3d. 259 (1991). (Par. 20). A reasonable trier of fact could find, beyond a reasonable doubt, that the defendant operated the vehicle to the roadside location while impaired.

Obstruction conviction.

R.C. 2921.31(A)provides:

No person, without privilege to do so and with purpose to prevent, obstruct, or delay the performance by a public official of any authorized act within the public official's official capacity, shall do any act that hampers or impedes a public official in the performance of the public official's lawful duties.

"The proper focus in a prosecution for obstructing official business is on the defendant's conduct, verbal or physical, and its effect on the public official's ability to perform the official's lawful duties." State v. Wellman, 2007-Ohio-2953 (1st Dist.). "The purpose with which a person does an act is determined from the manner in which it is done, the means used, and all the other facts and circumstances in evidence." In re Payne, 2005-Ohio-4849 (1st Dist.), quoting State v. Hardin, 16 Ohio App.3d 243, 245 (10th Dist. 1984). (Par. 24).

R.C. 4511.191(A)(5)(b) authorizes an officer to use whatever reasonable means are necessary" to procure a blood sample from the defendant. In this case the blood was attempted to be drawn by a phlebotomist in a hospital in accordance with a search warrant. The defendant’s struggle delayed the process. The court noted the prosecutor does not need to prove that the defendant successfully prevented an officer from performing his or her official duties, but only evidence demonstrating the defendant actually interfered with the performance of an official duty and made it more difficult. (Par. 28, citation omitted.). In the present case the court found the defendant’s conduct constituted a substantial impediment, even though not a successful one, sufficient to support the obstruction conviction.

State v. Tilton, 2025-Ohio-5471 (11th. Dist.). OVI and resisting arrest convictions were affirmed. This case arises out of a two car collision. At the scene the defendant refused to provide his driver’s license to the officer. The officer noticed an odor of alcohol on the defendant’s breath and his eyes were glossy with dilated pupils. The defendant did not report and the officer did not see any visible injuries and the defendant refused medical assistance.

The defendant was argumentative with the officer and refused to get out of the car until the officer warned him of being tased. As other officers and paramedics arrived, they observed from the defendant a strong alcohol odor, bloodshot eyes, and slurred speech. The defendant was ultimately arrested and charged with OVI, R.C. 4511.19(A)(1)(a), OVI with refusal and prior conviction, R.C. 4511.19(A)(2), marked lanes violation, R.C. 4511.25(A) and resisting arrest in violation of R.C. 2921.33(A). The defendant was found guilty of all charges by jury trial, with the two OVI counts merged for sentencing.⁵

Opening statement by prosecutor

On appeal the defendant asserted prosecutorial misconduct by the reference to the defendant’s prior OVI convictions. The appellate court noted, however, that a prior OVI conviction within twenty years was an element of the R.C.4511.19(A)(2) refusal offense. The court also noted the prosecutor did not go into detail, but merely mentioned the prior conviction in opening statement. The parties had stipulated to the prior OVI conviction relieving the prosecutor from presenting any evidence on this element. (Par. 38).

Aerial photograph.

At the trial the prosecution introduced an aerial photograph where the collision occurred. The court found the photo was only used as a reference tool for the jury. The photo was properly admitted under Evidence Rule 901(A) with testimony that it was what the proponent claimed it to be. (Par. 53). The court found the prosecution presented evidence sufficient to lay a foundation and to connect the photograph with the relevant facts of the case. (Par. 53, citations omitted.). In the present case the photo was identified by two separate witnesses as the scene of the collision.

Booking video.

The court found the booking video was introduced to demonstrate the defendant’s uncooperativeness and unusual behavior, supplementing the evidence of the OVI and resisting-arrest charges. (Par. 47). The court also noted the video was consistent with the officers’ testimony with no proof of prejudice to the defendant.

2. Evidence not sufficient.

State v. Willey, 2025-Ohio-5496 (5^th. Dist). An order overruling a motion to suppress was reversed and OVI conviction was vacated. The officer pulled behind a car stopped on the side of the road with the hazard lights on. As the officer came to the driver’s side door, the defendant, the sole occupant of the car, seemed confused and surprised to see him, even though the officer parked behind her with the overhead flashing lights. The defendant had white powder on her shirt and face. Although the defendant told the officer she had been eating a doughnut, no packaging was present.

The defendant provided her driver license to the officer, complied with his request to get out of the car, and performed field sobriety tests. The defendant was arrested for OVI. Overruling the motion to suppress, the trial court found the stop was a consensual encounter as a part of his community caretaking role. From the facts observed by the officer, the trial court found the officer’s concern of impairment justified conducting field sobriety tests.

A request made of a validly detained motorist to perform field sobriety tests is generally outside the scope of the original stop and must be separately justified by other specific and articulable facts showing a reasonable basis for the request. (Par. 12, citation omitted.). Requiring a driver to submit to a field sobriety test constitutes a seizure within the meaning of the Fourth Amendment, although the officer need only have reasonable suspicion of impairment in order to conduct the roadside tests.

In the present case the court found although the defendant initially appeared confused and dazed, she responded to the officer’s request will no problems. Her speech was not slurred, eyes not glassy or bloodshot, and no alcohol or narcotic odors were observed. Further, no evidence was provided about the identity of the white powder being either sugar or an illegal drug. The court found the officer did not have a reasonable, articulable suspicion the defendant was impaired to justify the field sobriety tests.

Procedural issues.

1. Fully marked police car.

City of Sylvania v. Eitniear, 2025-Ohio-5445 (6^th. Dist.). Convictions for OVI and speeding offense were affirmed. (2-1 decision). When the defendant was stopped for going 49 mph in a 35 mph zone, the officer observed the defendant, who was under 21 years old, had the odor of alcohol and bloodshot and glassy. The defendant admitted to drinking two beers. After field sobriety tests were conducted, the defendant was arrested for OVI. The defendant submitted to a breath test with a BAC of .049. The defendant was charged with OVI and operating a vehicle with underage alcohol consumption in violation of R.C. 4511.19(B)(3). After a motion to suppress was overruled the defendant entered a no contest plea to both charges as well as the speeding offense with the OVUAC later dismissed.

The vehicle the officer was driving did not have a flashing, oscillating, or rotating colored light mounted outside on top of the vehicle as required by R.C. 4549.13. R.C. 4549.14 provides an officer who is on duty for the exclusive or main purpose of enforcing traffic laws is not competent to testify when the vehicle does not comply with the equipment and markings required by R.C. 4549.13. The court noted R.C. 4549.14 was enacted to provide uniformity in traffic control and to curb the 'speed traps' that were often operated by municipal and township peace officers in unmarked cars." State v. Huth, 24 Ohio St.3d 114, 115-16 (1986), citing Dayton v. Adams, 9 Ohio St.2d 89, 90 (1967). (Par. 9).

Citing State v. Huth, the Eitniear court noted the phrase “exclusive or main purpose of enforcing traffic laws” referred to “the officer's main purpose for his whole period of duty and not to his duty during the apprehension and arrest of the suspect." (Par. 12). In the present case the police chief testified that no officer’s duties are limited to traffic enforcement or exclusively road patrol, but involved other duties as well, such as business checks, bar fight intervention, and other activities. (Par. 13-14). Based on the evidence, the court held the officer’s duties in this case was not for the exclusive or main purpose of enforcing traffic laws. Notwithstanding the lack of equipment on the police car, the officer was not incompetent to testify under R.C. 4549.14.

The dissent found the officer was running radar in his usual place for the purpose of enforcing traffic laws when he saw the defendant. It was not a situation in which the officer was performing non-traffic enforcement duties and noticed a traffic offense. The dissent noted the issue was not what the officer could do, but what he actually was doing when he noticed the defendant speeding.

2. Sufficiency of complaint.

State v. Desmarais, 2025-Ohio-**** (1^st. Dist.). OVI conviction for per se drug level in violation of R.C. 4511.19(A)(1)(j)(II) was affirmed, but remanded to correct clerical error. At the scene of a two car collision, the officer smelled alcohol on the defendant’s breath and watch him almost hit a pole as he moved his car. Following field sobriety tests, the defendant was arrested and charged with R.C. 4511.19(A)(1)(a) ("OVI impaired"), R.C. 4511.19(A)(1)(j) ("OVI controlled substance"), and R.C. 4511.202 ("operating a vehicle without reasonable control"). After arrest the defendant submitted to a urine test.

In response to a request for a bill of particulars for the specific controlled substance that was the basis for the charge, the prosecution identified three separate bases;

1) a concentration of greater than 1000 nanograms of amphetamine per milliliter of urine in violation of R.C. 4511.19(A)(1)(j)(i),

2) a concentration of 726 nanograms of marihuana metabolite per milliliter of urine plus intoxication in violation of R.C. 4511.19(A)(1)(j)(viii)(I), and

3) a concentration of 726 nanograms of marihuana metabolite per milliliter of urine in violation of R.C. 4511.19(A)(1)(j)(viii)(II).

Prior to trial the court overruled the defendant’s motion to require the prosecutor to elect the specific theory for the OVI controlled substance charge, permitting the prosecution to procced to trial on alternate theories of prosecution. Following a bench trial, the defendant was acquitted of the OVI impaired charge, but found guilty of the OVI controlled substance for marijuana over the prohibited level and reasonable control charges. In the judgment entry of conviction, however, the trial court referred to the statutory violation relating to cocaine, which was not found in the defendant’s system.

On appeal the defendant asserted the charging citation was defective and ineffective to invoke the municipal court’s jurisdiction because it did not include the specific statutory subsection or identify the controlled substance. The court rejected this argument, finding the absence of a specific statutory subsection did not render a complaint defective when a defendant otherwise had notice of the State's allegations and was not prejudicially mislead by the omission. (Citations omitted). A traffic citation generally informs the defendant of the nature of the charge against him under R.C. 4511.19(A)(1)(j). In the present case State provided additional notice when it supplied a bill of particulars explaining three theories of prosecution under that subsection. (Citations omitted). Moreover, the court recognized toxicology results will often not be available at the time a traffic citation for OVI is filed, making it difficult to specify a subdivision of R.C. 4511.19(A)(1)(j) in the initial charging instrument.

Regarding the trial court’s referral to the cocaine, rather than marijuana subsection of R.C. 4511.19(A)(1)(j), the court found it was clearly a clerical error in light of the trial court’s explicit finding that the defendant’s urine contained a concentration of 726 nanograms of marijuana metabolite per milliliter. The case was remanded for the trial court to amend the written judgment entry.

Valid traffic stop

1. Display of license plate/tag.

State v. Dowdell, 2025-Ohio-5474 (11^th. Dist.). Drug possession convictions and order overruling a motion to suppress were affirmed. The defendant was stopped for lack of a rear license plate. When the officer approached the defendant’s car from behind the officer could see the temporary tag in the rear window. Although seeing the tag, the officer could not see the letters or number on the tag until about two feet away. The license tag was flush with the windshield, was securely taped to the windshield, and had no physical obstructions.

During the course of the stop a drug dog was called for a sniff and the drugs were discovered. The issue before the court was the validity of the traffic stop.

R.C. 4503.21(A)(3) permits a temporary license tag to be displayed in plain view from the rear window of a car. The defendant asserted “plain view” was not limited by any specific distance. The appellate court rejected this position, affirming the trial court’s finding that “plain view” meant “actually being able to read the letters and numbers' on the temporary license placard being displayed from the rear of one's vehicle.” (Par. 9). The court cited State v. Smith, 2022-Ohio-2383 (12th Dist.), State v. Anderson, 2018-Ohio-2455 (11th Dist.), and State v. Colton, 2005-Ohio-4494 (2d Dist.) which came to similar conclusions that the tag needed to be visible from the car behind.

Although the court noted other interpretations of “plain view” for license plates, the validity of the charge is not determinative of whether there was probable cause to approach the vehicle after seeing the license tag as long as it was objectively reasonable for the officer to believe that the ordinance was violated. (Par. 12). The issue is not whether there was a traffic violation, but whether the officer had objective, probable cause to believe that there was a violation. Bowling Green v. Godwin, 110 Ohio St. 3d 58, 2006-Ohio-3563.

2. Tinted windows.

State v. Simon, 2025-Ohio-5660 (2d. Dist.). Drug possession convictions and order overruling a motion to suppress were affirmed. The defendant was stopped for excessive window tint. While the officer was writing the citation, a drug dog arrived and as a result of a walk around sniff, the dog alerted to the presence of drugs. Methamphetamines, Xanax, fentanyl test strips, a box of clear plastic sandwich bags, gloves, a metal tin, and a scale, and a large amount of cash were later discovered in a locked backpack.

One of the issues raised on appeal was the validity of the initial traffic stop. Ohio law requires tinted front side tinted windows must have a light transmittance of not less than 50 plus or minus 3 percent. Adm. Code 4501-41-03(A)(3).⁶ In the present case the windshield tint was measured at 38% light transmittance, which did not comply with the code.

The defense did not dispute the traffic violation but argued insufficient proof because the detective who initially saw and reported the violation was not the citing officer. The court found the detective communicated that information and a description of the vehicle to the citing officer with whom he was working that day. The detective followed the defendant’s vehicle until the citing officer located it. Under the collective knowledge doctrine, the detective’s communication imputed his knowledge to the other officer. The court concluded the officer was competent to testify regarding the excessively dark window tint violation precipitating the traffic stop, even before he personally observed the violation. Citing State v. Adams, 2017-Ohio-7186 (10th Dist.). (Par. 24.).

Author’s Note: In both Dowdell and Simon the appellate courts cited the Ohio Supreme Court decision in State v. Dunlap, 2024-Ohio-4821, that an officer who has properly executed a traffic stop may make ordinary inquiries necessary to complete the mission of the traffic stop — including confirming that the driver has a valid driver's license.

3. Driving too slowly.

State v. Standiford, 2025-Ohio-5377 (5^th. Dist.). An order overruling motion to suppress and OVI conviction was affirmed. As the officer was approaching a flashing red light she saw the defendant driving with a very slow speed as he approached a flashing yellow light. This occurred at 2:26 a.m. with no other vehicles in the area. The defendant stopped prior to the stop bar for about ten seconds then pulled up to the stop bar and stopped again for about five seconds. He then drove slowly through the intersection. As the officer pulled behind the defendant, the defendant hit the brakes on the car for no apparent reason. The officer stopped the defendant and determined he was intoxicated. The defendant was changed with OVI, R.C. 4511.19(A)(1)(a), and slow speed, R.C. 4511.22. The defendant entered a no contest plea to the OVI after the motion to suppress was overruled.

The court found the officer made a traffic stop based on the observations of a traffic violation. R.C. 4511.22(A) prohibits a vehicle driving too slowly that impedes or blocks travel. In this case the court found the evidence including the defendant hitting his brakes for no reason and stopping at the intersection when there was no other traffic or requirement to do so was the basis of a valid traffic stop. Based on the officer’s observations, the court held there was reasonable and articulable suspicion of a traffic violation based on the totality of circumstances for a lawful traffic stop.

A traffic stop is limited in both duration and purpose and may only last as long as it takes the officer to either confirm or dispel the officer's suspicions. State v. Berry, 2018-Ohio-4791. (Par. 12). In the present case, once at the stop the officer found signs of impairment, there was a reasonable and articulable suspicion to have the defendant perform field sobriety tests.

Author’s note: The record does not disclose either the defendant’s speed or the speed zone he was in. Generally, a characterization of the defendant’s speed of “slow” or “fast” by itself is not sufficient evidence to support the traffic stop. See, State v. Fails, 2025-Ohio-4680 (2d. Dist.)(testimony that the defendant drove fast without any speed approximation was not sufficient to prove the defendant caused a substantial risk of serious physical harm.) In this case, although stopped for slow speed, the defendant’s erratic driving and time of night also provided a valid basis for the traffic stop.

Miscellaneous.

1. Ineffective assistance of counsel.

State v. Bell, 2025-Ohio-5439 (1^st. Dist.). OVI, speeding, and driving without a license convictions were affirmed. The defendant was stopped for going 44 mph in a 25 mph zone. The officer noted the defendant was sweating, had watery eyes, and a “fruity” alcohol smell from his breath. The defendant did not have a driver’s license, giving the officer his state identification card. The defendant also admitted to drinking a half pint of wine.

The defendant performed requested field sobriety tests, showing all six clues on the HGN, three out of eight clues on the walk and turn test, but no clues on the one leg stand test. The officer also performed the lack of convergence and modified Romberg tests, which the officer testified the defendant did not successfully pass. The defendant submitted to the breathalyzer, with a result of 0.115 BAC. The defendant was charged with OVI in violation of R.C. 4511.19(A)(1)(a) (driving impaired) and R.C. 4511.9(A)(1)(d) (per se violation), as well as speeding and driving without a license. At a bench trial, the defendant was acquitted of driving while impaired under R.C. 4511.19(A)(1)(a) but found guilty of the other three charges.

Ineffective assistance of counsel.

The defendant claimed ineffective assistance of counsel for failing to file a timely jury demand. To prevail on this claim, the defendant must show that

1) counsel's performance was deficient, and

2) counsel's deficient performance prejudiced the defense, by showing a reasonable probability that, but for counsel's error, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687 (1984); State v. Davis, 2020-Ohio-309.

A) Lack of jury demand.

In the present case defense counsel requested a jury trial on the date of the bench trial. Defense counsel stated she did not inform the defendant of the right to a jury trial, assumed as it was not requested, and the defendant wanted a bench trial. (Par. 9). The trial court denied the request for jury trial as untimely and proceeded to trial. On appeal, the court held, in light of the nature of the charge there was no reasonable probability of a different outcome. (Par. 11, citing cases cataloging findings of lack of prejudice when defense counsel fails to file a jury demand).

B). Lack of motion to suppress.

The defendant also alleged ineffective assistance of counsel for not filing a motion to suppress. In order to show ineffective assistance of counsel for failure to file a motion to suppress, the defendant must show that the motion, if made, would have been granted. (Par. 11). The defendant claimed the field sobriety tests were not conducted in substantial compliance with the NHTSA standards and the officer lacked probable cause for the arrest.

The court found that because the defendant did not file a particularized motion to suppress, the State's burden to show substantial compliance was no more than general and slight. State v. Richards, 2016-Ohio-3518 (1st Dist.). The officer was not required, in the absence of a particularized suppression motion, to explain whether he substantially complied with NHTSA in administering the field sobriety tests.  Thus, on this record, there is nothing to indicate a lack of compliance and nothing to suggest that the defendant’s suppression motion would have been successful even if raised. (Par. 14).

In addition to the field sobriety test results, the court noted other evidence to support the probable cause for the defendant’s OVI arrest, including a traffic violation, odor of alcohol, admission of consuming wine, sweaty condition in December, and watery eyes. As such, there was reasonable indicia of impairment sufficient to establish probable cause even without the results of the field sobriety tests.

2. Right to counsel and critical stage of proceedings.

State v. Frericks, 2025-Ohio-5374 (3d. Dist.). Convictions for domestic violence and drug possession with consecutive sentence was affirmed. The defendant entered guilty pleas to domestic violence and drug charges with the case passed for sentencing. The defendant was released on personal bond with conditions of no drugs of abuse and random drug screens. The prosecutor filed a motion to revoke bond after the defendant missed one drug screen and tested positive for methamphetamines, amphetamines, cocaine, and THC at the next screen. The trial court issued a warrant and scheduled a bond revocation hearing the day after the defendant was arrested.

Defense counsel was not available for the bond hearing. The trial court continued the bond revocation hearing and advised the defendant of his constitutional right to remain silent. When the defendant asked to speak, the judge cautioned him to hold off and only make any statements to his attorney. No other action occurred and the hearing was continued. The defendant remined in jail for a month until his sentencing hearing. At the hearing the court imposed consecutive sentences of eighteen months.

Right to counsel at continued bond revocation hearing.

The Sixth Amendment right to counsel applies to critical stages of criminal proceedings. State v. Schleiger, 141 Ohio St. 3d 67, 2014-Ohio-3970. Not all court appearances require counsel for the defendant. In the present case the continued bond hearing was not a "critical stage" of the criminal proceedings to which the defendant’s right to counsel applied and, his constitutional rights to counsel were not violated despite his counsel's absence.⁷ The appellate court noted no decision on bond was made and there was no discussion of the alleged bond condition violations by either the court or the prosecutor. Although the defendant made a statement about the alleged violations, the statement was not elicited by the court and made by the defendant after the court advised the defendant not to make a statement. The court merely continued the hearing due to defense counsel’s absence.

Consecutive sentences.

R.C. 2929.41(A) is a statutory presumption in favor of concurrent sentences. (Par. 24, citations omitted.). R.C. 2929.14(C)(4) permits sentences to be imposed consecutively when the court finds:

1) the consecutive service is necessary either to protect the public from future crime or to punish the offender;

2) the consecutive sentences are not disproportionate to the seriousness of the offender's conduct and to the danger the offender poses to the public; and

3) one of the factors in R.C. 2929.14(C)(4)(a), (b), or (c) applies.

The court determined consecutive sentences were justified under R.C. 2929.14(C)(4)(c), which provides, “The offender's history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the offender.” In court noted the defendant had a criminal history that spanned three decades including offenses of violence and that he had failed to respond favorably to sanctions imposed in the past. As such, the court found consecutive sentences were supported by clear and convincing evidence.

3. Probation conditions – No alcohol or drugs; Standard of review.

State v. Panich, 2025-Ohio-5709 (11^th. Dist.). Conviction for aggravated assault and probation conditions were affirmed. As part of the sentence, the court imposed probation conditions including, “that he not have any alcoholic beverage, drug of abuse, pseudoephedrine product, marijuana, anything that contains THC; that he may not enter any business or bar that sells alcohol for consumption; use a vaping device; and that he must submit to unannounced urinalysis; and submit to mental health and substance abuse screening.”

On appeal the defendant challenged the probation conditions on the grounds there was nothing in the record to indicate the conviction for aggravated assault involved alcohol or drugs. The appellate court noted, however, that no objection to the conditions was raised at the time of sentencing. Therefore, the issue on appeal was reviewed on the basis of plain error, not as an abuse of discretion. Notwithstanding the standard for reasonable probation conditions set out in State v. Jones, 49 Ohio St. 3d 51 (1990, including some relationship to the crime of which the offender was convicted, the appellate court held the restrictions did not rise to the level of creating a manifest injustice or plain error.

D) Consideration of order to re-test for driver’s license.

State v. Vanhorn, 2025-Ohio-5748 (5^th. Dist). An order overruling the defendant’s request to re-test for a driver’s license was affirmed. A lifetime driver’s license suspension was imposed as part of the sentence for the defendant’s aggravated homicide conviction in 2012. In August, 2015, after the defendant’s release from prison, the defendant sought limited driving privileges. The trial court indicated it would grant the request after the defendant had complied with all of the BMV requirements to clear his driving status, the trial court would issue an order to renew the driver’s license.

The defendant took no other action to renew his license for ten years. At that time the defendant filed a motion to re-test for his driver’s license. The trial court denied the motion to re-test based on the prosecutor’s objections. On appeal, the defendant argued the issue to retest had been granted, and therefore could not be changed. The court on appeal noted the law of the case “is a rule of practice, based upon sound policy that when an issue is once litigated and decided, that should be the end of the matter." United States v. United States Smelting Ref. & Mining Co., 339 U.S. 186, 198 (1950).

In the present case, however, the appellate court held the trial court had discretion to consider the facts and evidence submitted at the time of the filing of each of the defendant’s motions. During the ten year interval without a driver’s license, the defendant had been conviction from separate incidents of driving under a suspended license and failure to comply with a lawful police order. Considering these undisputed convictions, the decision to deny the defendant’s request to retest for a driver’s license was not unreasonable.