Traffic Signals — January 2024
Dear Colleagues,February 9, 2024
This is the initial launch of a newsletter setting out a monthly summary of Ohio court decisions concerning impaired driving, alcohol and drugs of abuse, and other related topics. There is also a section for upcoming education opportunities. As part of my role as the Ohio Judicial Outreach Liaison with the American Bar Association, I want to provide current case law and other information to you. As a judge for thirty two years, I understand the time constraints and difficulty with keeping up with recent court decisions. As the newsletter develops, I plan to add links to helpful articles and other information.
I am grateful to Paul Pfeifer, Trina Bennington, and the Ohio Judicial Conference staff for assistance in the distribution of the newsletter. Please feel free to provide feedback.
Patrick Carroll, retired judge
Ohio Judicial Outreach Liaison to the ABA
(216) 403-5521
Summary of impaired driving and other traffic related cases, January 2024
Circumstantial evidence
State v. Pack, 12th. Dist. Clermont, No. CA-2022-10-063, 2024-Ohio-190. Convictions for driving under an OVI suspension, leaving the scene of a collision, and willfully fleeing a police officer were affirmed, finding that circumstantial evidence was sufficient to identify the defendant as the driver of the car. While fleeing from the police officer’s car, the driver lost control of his own car, crashing into a cometary and fleeing on foot. Although the officer did not see the driver’s face, evidence of the defendant’s credit card left in the car along with a cellphone with a background picture of the defendant and the other passenger was sufficient to prove the defendant’s identity. The first person exited from the driver’s side, followed by a second person, who was considerable shorter, from the same door due to the damage to the passenger door. A physical description of the defendant matched the physical height of the person running away from the crash site. The officer testified that the driver’s seat was in a pushed back position that it would have been difficult for the other occupant to be driving the car.
Investigation stops
State v. Wells, 5th. Dist Coshocton, No. 2023 CA 0021, 2024-Ohio-236. This case involved a consent search of the defendant with a disabled truck. In affirming the conviction for drug possession, the court set out three different types of contact between police and public.
Investigation purposes. Approaching an individual on the street or in another public place seeking to ask questions for voluntary, uncoerced responses. The person approached need not answer any questions and cannot be detained by the police for refusing to respond to the officer.
Terry stop. A temporary detention based on reasonable suspicion. A police officer may in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating possible criminal behavior even though there is no probable cause to make an arrest. (Par. 17.) The officer must be able to articulate something more than “an inchoate and unparticularized suspicion or hunch,” from the standpoint of an objectively reasonable police officer. (Citations omitted.)
Probable cause to believe a crime was committed and warrantless arrest. The principal components of a determination of reasonable suspicion or probable cause will be the events which occurred leading up to the stop or search, and the decision to arrest based on these facts, viewed from the standpoint of an objectively reasonable police officer. (Citations omitted.) (Par. 19.)
Regarding a consensual search, a police officer approaching a stopped vehicle is consensual in nature and does not trigger Fourth Amendment scrutiny. Voluntary consent is determined by the totality of the circumstances. It may not be implicitly coercive or exceed the scope of the consent and the person searched by limit or revoke their consent. (Par. 20, 26-27.) “The standard for measuring the scope of a suspect's consent under the Fourth Amendment is that of ‘objective’ reasonableness-what would the typical reasonable person have understood by the exchange between the officer and the suspect? (Par. 28, citations omitted.)
State v. Adams, 2d. Dist. Montgomery, No. 29855, 2024-Ohio-174. A conviction for drug possession and denial of motion to suppress on plain view grounds was affirmed when police responded to welfare call. The defendant was found passed out in the driver’s seat of a truck in the defendant’s driveway near the road. The truck engine was running and in drive with the defendant’s foot on the break. Heroin was seen on the console when the defendant got out of the truck.
In affirming the conviction, the court found that the officers’ actions were justified under the community caretaking/emergency-aid exception, which permits an officer with objectively reasonable grounds to believe that there is an immediate need for his/ her assistance to protect life or prevent serious injury to conduct a stop. The court noted that this exception is separate from the detection, investigation, or acquisition of evidence relating to the violation of a criminal offense and a reasonable articulable suspicion of criminal activity is not required. (Par. 9, citations omitted.) The court further noted that during the course of a lawful traffic stop, a law enforcement officers may order the occupants out of the vehicle. (Par. 12, citations omitted.) After the defendant regained consciousness and the medics left the scene, the officers were permitted to further inquire based on the defendant’s physical appearance and impairment as the welfare check turned into a criminal investigation.
Author’s note: The defendant was also cited with being in physical control of the vehicle under the influence, but the appellate opinion did not state the disposition of this charge. Unlike suspended license offenses which require operation on public roads or private property open to the public, depending on the specific statute, physical control under the influence, similar to an OVI offense, is not limited and may occur anywhere in the state of Ohio, including the defendant’s own driveway or other private property.
Welfare check
State v. Jentzen, 12th. Dist. Clermont, No. CA2023-04-030, 2024-Ohio-33. The order overruling motion to suppress was affirmed. The police responded to the defendant’s home in response to a call by someone who had taken the defendant from the defendant’s car at the side of the road to the defendant’s home. The same person had called the police a few minutes earlier that the defendant was driving recklessly. The police arrived in response to the calls for a welfare check and after being let in the house by the defendant’s mother, interviewed the defendant. The defendant stated he had bought three cans of aerosol dusters, one of which the defendant stated he had huffed. The defendant was given a citation for abusing harmful intoxicants and the police left the home.
The issue before the court was whether the defendant should have been given a Miranda warning by the police. The court found that from the totality of the circumstances, the defendant was not in custody and his freedom of action was not deprived in any significant way by the officers’ conduct or questioning. (Par. 20.) Although there was testimony by the police that the defendant was not free to leave, the questioning was determined to be part of the welfare check, including asking the defendant if he needed to go to the hospital.
Duration of Stop
State v. Foti, 11th. Dist. Lake, Nos. 2023-L-071 & 2023-L-072, 2024-Ohio-39. The order overruling motion to suppress was affirmed. The defendant was a passenger in a car stopped for a traffic headlight violation. Neither driver nor passenger had identification when asked by the officer. The name the defendant gave to the officer did not match the physical description or BMV photo of the defendant. Both driver and passenger were ordered out of the car. The defendant/passenger had two knives, one clipped to each front pants pocket. Due to suspicion of false identity and officer safety, the defendant was handcuffed and detained.
In the motion to suppress, the defendant asserted the officer’s investigation into the defendant’s identity measurably prolonged the traffic stop. The court held that during a traffic stop, an officer may request identification information from a passenger. Delay in the stop to inspect driver’s licenses, vehicle registration, and insurance as well as checking for outstanding warrants, is part of the traffic stop along with writing a citation, but the officer "may not do so in a way that prolongs the stop, absent the reasonable suspicion ordinarily demanded to justify detaining an individual." Rodríguez v. United States, 575 U.S. 348, 354 (2015). An officer may not unlawfully prolong the stop without reasonable suspicion beyond the scope of the stop. The court in Foti reviewed a number of cases finding that passenger checks are permissible on the basis that such action ensured officer safety and therefore was within the mission of the traffic stop. (Par. 14.) In this case the court held that the false information provided by the defendant created a reasonable suspicion to detain the defendant beyond the mission of the traffic stop.
State v. Manns, 2d. Dist. Montgomery, No. 29882, 2024-Ohio-23. The order overruling motion to suppress was affirmed. The driver was stopped for running a red light and making an improper turn from a straight thru only lane. Both the driver and the defendant/passenger had out of state driver’s licenses. The stop was in a known drug area and the driver stated she was coming from a casino which was in the other direction. While writing the citation, the officer called for a drug dog. The dog arrived fifteen minutes after the stop occurred. As the defendant got out of the car to let the dog sniff, drug paraphernalia fell out of his lap. The defendant also told the officer at that time that he had drugs in his underwear.
On appeal the court recognized that a traffic stop may be premised upon any violation of the traffic law. The stop must be temporary and must last no longer than is necessary to effectuate the purpose of the stop. (Par. 7.) In this case the court found that the officer was still completing the traffic citations when the drug dog arrived at the scene, so the sniff process did not illegally prolong the stop. In arriving at this conclusion, the court noted that the citation took more time because the out of state driver’s license required manual input of information on the citation which would have been “auto populated” with an Ohio license. The court further found that removing the defendant/passenger from the vehicle was for officer safety and not required to be supported by reasonable suspicion.
State v. Kancler, 8th. Dist. Cuyahoga, No. 112849, 2024-Ohio-16. The order overruling motion to suppress was reversed. The defendant was stopped at night for driving with an unlit headlight. After the stop the officer walked to the front of the car and the headlights were on as shown by the officer’s video. It appeared there was water in the wheel well that caused the lights to go on and off. The defendant’s license was verified as valid. Although stating he would issue a warning, when the defendant’s information was received, the officer recognized the defendant from a prior drug arrest a year earlier. Due to the officer’s recognition of the defendant, the officer called for a drug dog. After the drug dog procedure, crack cocaine was found in the glove box.
The court noted that when an officer stops a motorist on the reasonable suspicion of traffic violation, the officer may detain the motorist only long enough to issue a warning or citation. (Par. 22, citations omitted.). An officer can extend the duration of the stop if there is reasonable suspicion of other illegal activity that was discovered during the course of the stop. The court held that the initial stop of an unlit headlight was valid but were divided on whether the stop could be continued once the officer saw the headlights were fully functioning. Notwithstanding this disagreement, the court held the officer’s recognition of the defendant from a prior drug charge was not sufficient to detain the defendant.
Probable cause
State v. Williams, 10th. Dist. Franklin, No. 23AP-144, 2024-Ohio-311. The OVI conviction and denial of motion to suppress was affirmed. The defendant was stopped by the police officer after driving into cement road barrier. Although the defendant stated he was using his cell phone, because of an odor of alcohol on his breath, the defendant was asked to perform field sobriety tests. From the results of the field sobriety tests, the defendant was arrested for OVI. The defendant took the breath test, resulting in a 0.125 blood/alcohol level.
The defendant was convicted of OVI for both impaired driving (R.C. 4511.19(A)(1)(a)) and the per se violation. (R.C. 4511.19(A)(1)(d)). The convictions were merged for purposes of sentencing under the impaired driving offense. On appeal, the defendant asserted the convictions were against the manifest weight of the evidence. The defendant claimed that hitting the cement median was due to other factors (bald tires and cell phone use) and not impairment by alcohol and that no other traffic violation was noted by the officer. Rejecting this argument, the appellate court noted that an observation of impaired driving is not necessarily a prerequisite to a conviction for OVI, citing State v. Koss, 10th Dist. Franklin, No. 13AP-970, 2014-Ohio-5042. In Williams the officer did not suspect the defendant was under the influence of alcohol until the officer made the non-investigatory traffic stop after the collision and noticed odor of alcohol and other impairment factors. Although the defendant raised issues on appeal to contradict each impairment factor noted by the officer, the court held the issues went to the credibility of the witnesses, not the sufficiency of the evidence.
Note: In this case the defendant had accepted a plea to physical control of the vehicle under the influence, but later withdrew it. A motion to suppress was filed by the defendant’s initial attorney, but no action taken by his second or third attorney. The appellate court noted that there was no action taken by trial counsel to pursue the motion to suppress or object at trial to numerous issues raised on appeal.
State v. Adams, 12th. Dist. Adams, No. 22CA1158, 2024-Ohio-376. The defendant was charged with OVI and possession of a controlled substance that was found on the defendant during his OVI arrest. The defendant was involved in a single vehicle crash when riding a mini dirt bike with a flashlight as a headlight. An HGN test administered at the scene did not show impairment. The officer did not administer the walk-and-turn and one-leg field sobriety tests because the defendant reported a leg injury which could invalidate the results. The officer administered two additional "drug test, including the lack-of-convergence test and the modified Romberg test. The lack of convergence test did not indicate marijuana use, but the other test indicated the defendant was under the influence of a controlled substance. A motion to suppress was overruled. The jury returned verdicts of guilty on the drug possession and not guilty on the OVI charge.
Regarding the motion to suppress, the court noted “A single-vehicle accident with other observable indicia of impairment may also support probable cause of OVI.” (Par. 23, citation omitted.) The other indicia of impairment in this case included dry mouth, dilated pupils with no reaction to the officer’s flashlight, and being very talkative. The court also stated that the HGN test was limited to alcohol detection and the lack of convergence test only applied to marijuana use.
The indictment in this case charged the defendant with both acetyl fentanyl and fentanyl. The prosecutor dismissed the acetyl fentanyl part of the indictment. The court held the amendment did not materially alter an essential element of the charge. Moreover, at the time of the incident acetyl fentanyl was not a controlled substance.
United States v. Stepney, No:2:23-cr-68, 2024 U.S. Dist. Lexis 4459 (S.D. Ohio 2024). The officer’s observation of the defendant and passenger smoking in vehicle combined with the smell of raw and burnt marijuana from the vehicle was sufficient probable cause to detain the defendant and search the vehicle.
Venue
State v. McWilliams, 2d. Dist. Champaign, No. 2023-CA-16, 2024-Ohio-97. Acquittal for drug possession for lack of venue was reversed when the defendant was also charged with operating a vehicle under the influence of a drug of abuse. Once ingested, a controlled substance is assimilated into a person's body, the person loses the ability to control or possess the substance. State v. Foreman, 166 Ohio St. 3d 204, 2021-Ohio-3409. “Accordingly, an individual cannot be in ‘possession’ of a controlled substance, as is required under R.C. 2925.11(A), if the possession is based on the mere presence of the substance that was assimilated into the person's body.” (Par. 19.) Evidence of drug consumption through, in this case the defendant’s urine sample, however, may be used to prove the defendant had been in possession of the drug.
The appellate court in McWilliam found that the defendant was not in possession of the drugs at the time of the stop and the prosecution could not prove where the drugs were consumed. Under R.C. 2901.12(H)(1) of the Ohio venue statue, however, the court found that the drug possession offense was part of a course of conduct with the OVI offense, which the state did prove venue. When part of a course of criminal conduct, offenses committed in different jurisdictions may be tried in one jurisdiction “in which one of those offenses or any element of one of those offenses occurred.” R.C. 2901.12(H)(1). In arriving at this conclusion, the appellate court distinguished Foreman, in which the defendant was only charged with a single count of drug possession with no proof of where the drug was possessed or consumed.
Sentencing factor
United States v. Price, No. 23-3241, 24 U.S. App. Lexis 2275 (6th. Cir. 2024). Twenty four month prison term upheld for violation of terms of supervised release based on three OVI convictions and other noncompliance with release terms. Affirming the sentence, the appellate court noted the district court’s statement that the district court recognized its sentence may seem "uncharacteristic and harsh," but it reasoned that the three times the defendant drove a vehicle “while drunk was the ‘equivalent of a loaded gun,’ and only through good fortune and not through any act of his own, no one was hurt.” The appellate court also noted the defendant’s multiple and repeated supervised-release violations and consideration of public safety and deterrence to support the imposition of the statutory maximum sentence.
OVI vehicle forfeiture
Conaway v. Village of Mt. Orab, 12th. Dist. Brown, No. CA2023-03-004, 2024-Ohio-36. Summary judgment in favor of village for claims of conversion and unjust enrichment by spouse of defendant claiming an interest in the defendant’s forfeited vehicle. The vehicle was forfeited as part of the defendant’s plea in felony OVI charge and vehicle forfeiture specification .
The court found that seizure of a motor vehicle from a person who has been convicted of multiple felony OVI offenses was a governmental function under R.C. 2744.02 as the action promotes and preserves the public peace, health, safety and welfare, and the seizure of the forfeited vehicle was governmental function under R.C. 2744.02(C)(2)(a) and (b) within the provision of police services and preserves the peace. (Par. 16.) Although there was an issue whether the village complied with the forfeiture procedures in R.C. 2981.03 et. seq, with the publication of forfeiture notice, the court found that lack of compliance did not create an exception to the village’s immunity.
(Author’s note: In this case the common pleas court ordered forfeiture of the vehicle under R.C. Chapter 2981 in accordance with R.C. 2941.1415 and R.C. 2941.1417 as part of the felony OVI and specification conviction and sentence. The procedure for forfeiture of a vehicle for a misdemeanor OVI offenses, as well as other traffic offenses, is governed by R.C. 4503.234.)
Upcoming Education Opportunities
February 26, 2024, 1:00 p.m. Introduction to Long Term Ethanol Biomarkers - Presented by the ABA JOL Program, (Free, one hour webinar)
Registration: https://americanbar.zoom.us/webinar/register/WN_0LEvEY57SLGlopvBZTYeBg
April 6-9, 2024, Lifesavers Conference on Roadway Safety, Denver Colorado.
Information on conference and registration: lifesaversconference.org
May 6-8, 2024: “Drugged Driving Essentials.” National Judicial College, Reno Nevada.
Register here: Drugged Driving Essentials - The National Judicial College (judges.org)
(Tuition scholarships and travel funds may be available through the NJC)
May 14-17, 2024, Drugs in America Today: What Every Judge Needs to Know, Reno, Nevada.
https://www.judges.org/courses/drugs-in-america-today-what-every-judge-needs-to-know/
May 20 & 21, 2024, Ohio Traffic Safety Summit, Columbus, Ohio.
May 22-25, 2024, AllRise Conference, Anaheim, California.
Information on conference and registration: Allriseconference.org
July 15-17, 2024, Summer meeting, Association of Municipal and County Court Judges of Ohio, Sawmill Creek, Ohio.
September 19-20, 2024, Annual Meeting of the Ohio Judicial Conference, Easton, Ohio.