Pat Carroll

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Traffic Signals — February 2024

TRAFFIC SIGNALS NEWSLETTER

Dear Colleagues,March 8, 2024

This is the second monthly newsletter setting out a summary of Ohio court decisions issued in February concerning impaired driving, alcohol and drugs of abuse, and other procedural related issues that may be raised in these cases. 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

[email protected]

(216) 403-5521

  1. Summary of impaired driving and other traffic related cases, February, 2024.

Green means Go!

State v. Hill, 5th. Dist. Fairfield, No. 2023-CA-00028, 2024-Ohio-522. Order overruling motion to suppress and OVI conviction was affirmed. The defendant was stopped for remaining stationary at a green light for twenty seconds at 2:27 a.m. and then proceeded to make a left turn while the light was still green. The issue is whether there was reasonable suspicion for the officer to stop the defendant. The appellate court distinguished a non-investigatory traffic stop, in which a traffic violation was witnessed by the officer, and an investigatory traffic stop, when no traffic violation was witnessed, but the officer had sufficient reason to believe that a criminal act has taken place or is occurring and seeks to confirm this suspicion of criminal activity. (Par. 19.)

A green light is not an unconditional command to proceed and delay may lawfully occur to yield to a pedestrian or other vehicle in the intersection. R.C. 4511.13(A)(1)(a). (Par. 26-27). In the absence of impeding traffic or some other violation, a violation for failure to proceed on a green light will depend on the length of delay and other circumstances. The court declined to find a specific length of delay for a traffic violation when not proceeding through a green light. In this case the court treated the stop as an investigatory stop. The court noted that a defense to a minor misdemeanor traffic violation does not undermine the validity of the stop. Rather, the issue is whether the driver’s conduct gave the officer reasonable and articulable suspicion to initiate a traffic stop. (Par. 21, citing State v. Mays, 119 Ohio St.3d 406, 2008-Ohio-4539.)

In the present case the court found that there were no other cars or pedestrians at or near the intersection that would justify the defendant’s delay at the green light. In view of the totality of the circumstances available to the officer at the time, the officer has reasonable and articulable suspicion of a traffic control device violation sufficient under the facts of this case to allow the officer to investigate whether the defendant disobeyed a traffic control device.

Cleveland Heights v. Jackson, 8th. Dist. Cuyahoga, No. 112278, 2024-Ohio-472. OVI conviction was affirmed. In response to a citizen’s report, the police approached the defendant who was passed out behind the wheel of the car in an intersection. The traffic light has cycled several times, with the officers observing two light cycles, with the car not moving. When the officers approached the sleeping defendant on the driver’s side of the car he woke up. The driver could not recall where he was coming from and said he was going home but could not provide an address. The driver had slurred speech and glassy eyes as well as the odor of alcohol on his breath. The defendant was asked to perform filed sobriety test and was arrested for OVI and impeding the flow of traffic. The defendant refused to submit to a breath test. The defendant was found guilty of both charges by a jury.

The issue on appeal was what constituted “traffic” for the underlying impeding traffic offense. The defendant raised the issue by sufficiency of the evidence that the incident occurred in the early morning hours and although stopped at the intersection, there were no other cars to be impeded or blocked as those terms are used in the ordinance. (Ordinance is local version of R.C. 4511.22(A).) The court in Jackson noted the holding in Cleveland v. Dawson, 8th. Dist. Cuyahoga, No. 71450 (July 24, 1997), that stopping in a lane which could have been used for travel diverted other vehicles and thereby impeded traffic, even though traffic was not stopped. Dawson at 14.

The court in Jackson found that the driver who reported the stopped vehicle and the police cars that responded were blocked by the defendant’s car in the intersection for an interval of repeated traffic light cycles were “traffic” within the meaning of the ordinance. The issue of whether a responding police car itself constitutes impeded traffic is a case by case, fact related determination. (Par. 12, citation omitted.) The majority opinion and dissent, when read together, point out the difference between a stopped and slow moving vehicle regarding a violation of this statute.

Double jeopardy.

State v. Rocubert, 3d. Dist. Shelby, No. 17-23-11, 2024-Ohio-401. Misdemeanor vehicular homicide conviction in municipal court did not prohibit by double jeopardy aggravated vehicular homicide for the same collision. This case involved a collision in which five people including an unborn child were killed. The defendant was charged in the municipal court with five vehicular homicide charges, entered a plea of no contest to one court, with the remaining four counts dismissed by agreement of counsel. The defendant was advised at the time of the plea that other charges could be filed. After the plea and conviction, the defendant was indicted on five counts of aggravated vehicular homicide arising from the same collision. A motion to dismiss the indictments on the grounds of double jeopardy was overruled.

Regarding the dismissed misdemeanor changes, the court stated that when a dismissal of a criminal charge does not set out if it was with or without prejudice, it is assumed to be without prejudice. (Citation omitted.) Relying on State v. Soto, 158 Ohi St.3d 44, 2019-Ohio-4430, the court in Rocubert stated “the dismissal of a criminal charge pursuant to a negotiated plea agreement does not bar further prosecution for the conduct at issue in the dismissed offense.” Jeopardy does not attach until the trial is commenced. The court quoted Serfass v. United States, 420 U.S. 377, 393 (1975), "an accused must suffer jeopardy before he can suffer double jeopardy." The court in Rocubert found that the dismissed charges were not barred by double jeopardy.

The appellate court initially noted that double jeopardy is not affected by charges filed by separate prosecutors in municipal and common pleas court, as both are part of a single sovereignty. (Citations omitted.) The issue is the identity of the offenses. When the same act constitutes a violation of two distinct statutory provisions, the court is required to evaluate the elements of each statutory provision to determine "whether each offense contains an element not contained in the other or a proof of a fact which the other does not." United States v. Blockberger, 284 U.S. 299, 304 (1932). "This test focuses upon the elements of the two statutory provisions, not upon the evidence proffered in a given case.” (Citations omitted.). The felony charge in Rocubert included an OVI violation as an element of the offense. R.C. 2903.06 (A)(1)(a). The elements of the misdemeanor conviction included either negligent operation [R.C. 2903.06(A)(3)] or a minor misdemeanor violation [R.C. 2903.06(A)(4)]. The defendant was not charged with OVI in the municipal court. The court concluded that both the felony and misdemeanor offenses contained a separate element not found in the other offense and therefore, double jeopardy did not apply.

Validity of Stop.

State v. Gray, 2024-Ohio-347 (5th. Dist.). A conviction for operating a vehicle with a prohibited marijuana level was affirmed. The officer observed dark window tint and despite lights and siren, the defendant continued to drive, including stopping for two stop signs. When the defendant stopped, he rolled down the rear driver’s side window, stating the front window was broken. As the officer approached he saw the defendant throw a cup inside the car. For officer safety, the defendant was ordered out of the car and handcuffed.

The officer testified he smelled a strong odor of burnt marijuana from the car. The defendant stated he had a medical marijuana card, but it was at home. The officer conducted an HGN test but did not see any clues. The defendant did not object to the officer using a UV flashlight to check the defendant’s tongue, which showed recent marijuana use. The defendant had red, semi glossy eyes and told the officer he smoked about thirty minutes earlier. Cigars were found in the car, but no drugs or drug paraphernalia. The defendant was arrested for OVI in violation of R.C. 4511.19(A)(1)(a) and submitted to a urine test. The test results showed a marijuana metabolite greater than 200 nanograms per milliliter. The complaint was amended to add a violation of R.C. 4511.19(A)(1)(j) for marijuana and the prior impaired driving charge was dismissed.

There was no motion to suppress the stop, search, or arrest, but the issues were raised on appeal by way of ineffective assistance of counsel. In order to establish ineffective assistance of counsel for not filing a motion to suppress, the defendant must show a reasonable probability that the outcome would have been different if the motion had been filed. (Par. 18, citations omitted.) When a driver is stopped for a non-investigatory reasons, there is reasonable suspicion to continue the detention based on the odor of alcohol is combined with glassy or bloodshot eyes and further indicia of intoxication. (Par. 20, citations omitted.) The court in Gray stated the same standard applies to the odor of marijuana. The court noted that although there may have been a non-impairment reason for the defendant’s bloodshot eyes, it is still a relevant factor in determining reasonable suspicion at the time. (Par. 22.) The court also noted that probable cause in an OVI case is not determined solely on the results of field sobriety tests. (Par. 24.) Based on the evidence, including the absence of cigar odor from the car or the defendant’s breath, there was not a reasonable probability that a motion to suppress would have been granted.

Prior to trial appointed defense counsel filed a motion to withdraw as counsel on the grounds the defendant was going to hire private counsel. The motion was overruled as no new attorney had filed an appearance. The trial court was not required to inquire on the request to remove appointed counsel when the defendant has not shown dissatisfaction or other grounds to remove his appointed counsel. (Par. 35.) Grounds for substitution of appointed counsel include:

  1. Conflict of interest,

  2. Complete breakdown in communication, or

  3. Irreconcilable conflict between counsel and defendant.

Additional notes:

State v. Rowland, 7th. Dist. Columbiana, No. 22 CO 0037, 2023-Ohio-4806. OVI conviction was affirmed. Defendant was stopped by police from a caller identified as “Jeff” who made two calls reporting a red truck driving erratically, swerving, hitting the curb, and exceeding the posted speed limit. The caller continued to follow the truck when he made the second call to the police. The caller also gave the truck’s license plate which was one numeral off from the red truck license plate. The police began looking for the truck based on the caller’s directions. The truck was spotted by the police and pulled over for the traffic stop. Based on the defendant’s physical condition, strong alcoholic beverage odor, and inability to complete the field sobriety tests, the defendant was arrested for OVI and refused a breath test. After the motion to suppress was overruled, the defendant entered a plea of no contest to two counts of driving while under the influence of alcohol, in violation of R.C. 4511.19(A)(1)(a) and R.C. 4511.19(A)(2)(a) (2nd offense with refusal with prior within 20 years). The convictions were merged for sentencing.

Reasonable suspicion to stop from tip.

The court began its analysis with Alabama v. White, 496 U.S. 325 (1990), which held that although an anonymous tipster’s basis of knowledge and veracity are largely unknown and unknowable, when the officers' corroboration of certain details made the anonymous tip sufficiently reliable to create reasonable suspicion of criminal activity. 496 U.S. at 332. Naverette v. California, 572 U.S. 393, 399-400, found that an anonymous tip had sufficient indicia of reliability because the call reported the dangerous driving immediately after it occurred, which was tantamount to a "present-sense impression" and an "excited utterance" and was communicated without time for reflection based on the location of the traffic stop. The Court in Rowland stated that decision in White noted that an informant who demonstrates truthfulness with respect to innocuous details is more likely to tell the truth about other things, including claims of criminal activity. (Par. 26, citations omitted.)

Applying Ohio law, the Court in Rowland quoted Maumee v. Weisner, 87Ohio St. 3d 295, 1999-Ohio-68, "A telephone tip can, by itself, create reasonable suspicion justifying an investigative stop where the tip has sufficient indicia of reliability." In Weisner the court set out three categories of informants;

1) anonymous informant, (comparatively unreliable and requires independent police corroboration to demonstrate some indicia of reliability),

2) known informant who has provided previous reliable tips, (reliability from officer’s prior experience with informant),

3) identified citizen informant (highly reliable and, therefore, a strong showing of other indicia of reliability may be unnecessary.)

The category of the caller does not determine the outcome of the case but is one element in the totality of the circumstances. (Par. 39, relying on Weisner at 302.) Other factors considered by the court in Weisner were the basis of knowledge, that the information was based on personal observation in real time and the caller’s motivation. (Par. 40-41, relying on Weisner at 302-303.) Moreover, the Court in Naverette also noted 911 calls are recorded, permitting law enforcement to identify the number from which the telephone call originated, which deters callers from making false reports 572 U.S. at 400-401.

The court in Rowland found that the tip by “Jeff” with his location when combined with personal observations of the truck’s erratic driving, making two separate calls to the dispatcher in a short period of time, and providing the geographic location, make/model description, and license plate number, had sufficient indicia of reliability to justify the investigative stop.

The dissent asserted the caller did not sufficiently identify himself to qualify as a citizen informant, but rather as an anonymous informant as his identity was not known. The dissent further noted that there was no evidence of other traffic creating a danger, as compared to the situation in State v. Tidwell, 165 Ohio St. 3d 57, 2021-Ohio- 2072 (who was about to enter a highway), and the officer had time to observe Rowland’s driving to corroborate the erratic driving claim.

Sufficiency of traffic citation.

The defendant claimed the information on the uniform traffic ticket was not sufficient to comply with Criminal Rules 3 & 4 to set out sufficient allegation for an independent determination of probable cause for the defendant’s arrest. The court found that although Criminal Rule 4 requires a determination of probable cause from the complaint for a warrant to issue, this case involved a warrantless arrest, which is permissible for a misdemeanor committed in the officer’s presence. (Par. 62-63.) The court also found that Traffic Rule 3, not Criminal Rule 3 (which requires a statement of essential facts of the offense) applied to this case.

The court in Rowland, relying on Barberton v. O’Connor, 17 Ohio St. 3d 218 (1985), noted the difference between a traffic citation and a criminal complaint that:

The purpose of the Ohio Traffic Rules is, in large part, to ensure 'simplicity and uniformity in procedure'. Traf. R. 1(B). Simplicity in procedure does not mean unfairness in procedure, or indifference to the rights of the prosecution or the defense. It means that traffic court procedure is not controlled by the stricter, more elaborate rules governing procedures in more serious cases. 17 Ohio St.3d at 221.

A traffic citation setting out a description of the offense and the statute or ordinance is sufficient under Traffic Rule 3 to advise the defendant of the offense with which he is charged. In addition, unlike Criminal Rule 3 which requires the complaint to be given under oath, a traffic citation only requires the citing officer to attest to the accuracy of the citation. The court in Rowland found the traffic citation satisfied the requirements of Traffic Rule 3.

Author’s Note: Although this case was decided in December, 2023, it is included in this newsletter as it is currently pending appeal to the Supreme Court of Ohio with judgment stayed in February, 2024 on the issue of the validity of the OVI citation.

State v. Watts, 1st. Dist. Hamilton, C-230299, 2024-Ohio-635. Order overruling motion to suppress and conviction for driving under OVI suspension was reversed. Under Criminal Rule 47, the defendant has the initial burden to demonstrate that the state lacked a warrant, and to state the grounds upon which the defendant challenges the warrantless search or seizure. (Par. 5, citing Xenia v. Wallace, 37 Ohio St.2d 216 (1998). Once that burden is met it shifts to the state to prove justification for the warrantless search or seizure. The defendant’s burden is met when the motion sets out legal and factual bases with sufficient particularity to put the prosecutor on notice of the issues to be decided. (Citing State v. Shindler, 70 Ohio St.3d 54, 1994-Ohio-452 & State v. Codeluppi, 139 Ohio St.3d 165 2014-Ohio-1574.)

In this case the officer could not provide any reason for stopping the defendant and did not cite her with any violation other than driving under suspension. Based on the evidence in the record, the court found there was no reasonable suspicion to initiate the traffic stop.

State v. Jennings, 2d. Dist. Montgomery, No. 29895, 2024-Ohio-602. Conviction for aggravated drug possession was affirmed. The defendant was a passenger in a truck stopped for fictious licenses plates. Seeing the defendant holding a backpack, a flashlight and tools in the car, the officer called for a drug dog who arrived approximately ten minutes later. The occupants were removed from the truck after the officer learned the driver did not have a driver’s license and the truck would be towed. When the defendant got out of the truck, the backpack was left in the truck. A small safe was located in the backpack. A search warrant was obtained finding illegal drugs in the safe.

Duration of Stop.

The court found the dog sniff did not delay the traffic stop when the officer had decided to tow the truck because the driver had a suspended driver’s license. The court noted that:

Reasonable suspicion that a vehicle contains drugs is not required prior to conducting a canine sniff of the vehicle during a traffic stop so long as the duration of the traffic stop is not extended beyond what is reasonably necessary to resolve the issue that led to the stop and issue a traffic citation.  Furthermore, the use of a trained narcotics dog to sniff an automobile does not constitute a "search" under the Fourth Amendment.  If a trained canine alerts to the odor of drugs from a lawfully stopped and detained vehicle, an officer has probable cause to search the vehicle for contraband.  (Par. 11, citations omitted.)

The court found the canine sniff did not prolong the traffic stop.

Pretrial jail time credit.

The court also held that lack of jail time credit was not reversible error when the defendant was placed on community control supervision. The court held that the issue was not ripe for review and would only become a reviewable issue if the defendant violated probation and the jail sentence is imposed.

State v. DeHart, 2d. Dist. Darke, No. 2023-CA-8, 2024-Ohio-599. Order overruling motion to suppress affirmed on appeal. The defendant was seen asleep in the driver’s seat of a car at a gas station. The police approached the car for a welfare check. One of the officers recognized the defendant from prior encounters and was aware the defendant had a suspended license. The defendant was woken up and denied he had driven to the gas station. The defendant denied any contraband in the car and consented to a search by the police. A baggie of methamphetamine was found in the car’s center console.

The community caretaking/emergency-aid exception, which is grounded in interests of public safety, is an exception to a warrantless top by the police. The court found that a police officer approaching a sleeping person in a car and knocking on the window was within that exception. (Par. 13.) No criminal suspicion or other justification is needed. In the absence of any allegation of coercion, a consensual search does not create a Fourth Amendment issue.

No suppression motion filed.

State v. Parker, 9th. Dist. Medina, No. 2023CA 0047-M, 2024-Ohio-500. Order overruling motion to suppress and OVI conviction was affirmed. Criminal Rule 12(D) requires a motion to suppress to be filed within thirty-five days after arraignment or seven days before trial, whichever is earlier. The court has discretion to extend the deadline. In this case the trial court denied the motion filed seventeen days after a previous extension date set by the court had lapsed. The defendant stated he did not check the docket for the new deadline and filed the untimely motion to suppress without leave of court or any explanation of why it was untimely filed.

Regarding the merits of the OVI charge, the defendant was found guilty by jury trial of R.C. 4511.19(A)(1)9(a) (impaired driving) and R.C. 4511.19(A)(1)(d) (prohibited BAC), which were merged for sentencing. The defendant was also found guilty of failure to maintain assured clear distance by the court at the same trial. The defendant collided with the back end of another car when the defendant pulled out of a golf course parking lot. The defendant’s breath smelled of an alcoholic beverage and the defendant stated he had six beers over the day. The defendant’s speech was not slurred, but he had bloodshot, glassy eyes. The defendant did not perform well on the field sobriety tests. The police bodycam videos showing the defendant performing the tests were played to the jury. After his arrest, the defendant was offered to take a breathalyzer test. The first test, showing a .124 blood alcohol level was invalidated due to radio frequency interference. (RFI). A second test gave a reading of .111 blood/ alcohol level. As both tests were over the 0.08 blood alcohol limit, the court found the prior invalid breath test had no bearing on the results of the second test. Upon review, the court of appeals held the conviction was not against the manifest weight of the evidence.

State v. Harper, 7th. Dist. Columbiana, No. 23 CO 0023, 2024-Ohio-413. OVI and driving under suspended license convictions were affirmed. The defendant was stopped for speeding and found to have a suspended driver’s license. The officer noticed the defendant had bloodshot eyes and odor of alcohol from his breath. After field sobriety tests were conducted, the defendant was arrested for OVI and suspended license. A portable breathalyzer at the scene gave a reading of 0.295. Later at the station the defendant submitted to a breath test with a 0.161 blood/alcohol reading. Due to prior OVI convictions, including one less than two months prior, the defendant was indicted under R.C. 4511.19(A)(1)(a), impaired driving, and R.C. 4511.19(A)(1)(d), driving with a prohibited blood/alcohol level. (R.C. 4511.19(A)(1)(d). The defendant was found guilty of both charges after a bench trial and the two OVI counts were merged for sentencing.

Denial of continuance.

The first issue raised on appeal was the trial court’s denial of a motion to continue the trial due to the defendant’s medical condition. The defendant cited abuse of discretion and “lack of humanity” by the trial court. (Par. 12) The appellate court noted that the defendant had an ongoing medical condition so that a continuance would not necessarily resolve the medical issues. The court also noted that the defendant did not provide the court with future treatment dates, was seeking an indefinite continuance, and the case was almost two years old due to prior continuances. When exercising discretion to continue a trial, the court in Harper noted a trial court should consider:

1) the length of the delay requested,

2) whether other continuances have been requested and granted,

3) the inconvenience to the parties, witnesses, opposing counsel and the court,

4) whether the requested delay is for legitimate reasons or whether it is dilatory, purposeful, or contrived,

5) whether the defendant contributed to the circumstance giving rise to the request for a continuance, and

6) any other relevant factors. Citing State v. Unger, 67 Ohio St. 2d 65, 67 (1981).

Authors Note: R.C. 2930.08 also requires notice to the alleged victim and the right to object to a continuance.

Ineffective assistance of counsel for not filing motion to suppress.

To begin with the court noted that an Ohio licensed attorney is presumed competent. (Par. 22, citation omitted.) Specific to the OVI charge, the defendant asserted that there was no evidence that the officer observed the defendant for twenty minutes before administering the breath test, as required by the Ohio Department of Health regulations. Citing State v. French, 72 Ohio St. 3d 446 (1995), the court in Harper noted that issues of compliance with the Ohio Department of Health regulations must be raised at a pretrial motion to suppress. The court in Harper also noted that under the Rules of Evidence evidentiary objections challenging the competency, admissibility, relevancy, authenticity, and credibility of the chemical test results may still be raised at trial with no motion to suppress. The court found that even if the breathalyzer results were excluded, there was sufficient evidence to support the conviction for impaired driving under R.C. 4511.19(A)(1)(a). Therefore, the defendant failed to show that but for the motion to suppress a difference result would have occurred at trial.

Admissibility of Evidence

  1. L.E.A.D.S. printout of driving defendant’s record. Under Evid. R. 803(B), L.E.A.D.S. printouts are properly admissible under the public records exception to hearsay. (Par. 43, citation omitted). In this case the court found the officer authenticated the printout as the document he obtained on the night of the arrest.

  2. Certified judgment entry of the defendant’s prior OVI conviction. (Mahoning County). The document contained a raised seal from the common pleas court and signed by the deputy clerk. Therefore, the certified record of conviction met the self-authentication requirements of Evid. R. 902(1). Although the record did not have the defendant’s social security number on it, the court found there was sufficient evidence, including corroboration to the conviction in the L.E.A.D.S. printout.

  3. Copy of certified judgment entry the defendant’s prior OVI conviction.(Summit County). Although the court found that the copy of the judgment entry, which included a copy of the clerk’s signature, copy instead of original stamp showing “true copy” and no raised seal was error to admit, it was harmless error. R.C. 4511.19(G)(1)(e) only requires proof of one prior felony conviction, not more than one, the Mahoning County judgment was sufficient to support the third degree felony conviction.

Author’s note:

Motion to certify overruled.

State v. Bruce, 7th. Dist. Belmont, No. 23 BE 0009, 2024-Ohio-651. Motion for reconsideration and to certify conflict was overruled. The court found the defendant’s involvement in a motorcycle collision, strong odor of alcoholic beverage, and admission of consuming four beers and two shots in a three hour period without having eaten in eight hours was sufficient to support an OVI conviction, even though there was no chemical test, field sobriety tests (due to defendant’s injuries), no separate traffic citation, and no witnesses to his impaired driving. The court further found that there was no conflict with State v. Phoenix, 192 Ohio App.3d 197, 1st. Dist. 2010-Ohio-6009, which granted a motion to suppress due to lack of evidence of impairment because of the factual differences between the cases. Conflict certification is limited to conflicting appellate district decisions on a rule of law.

Consideration of prior OVI conviction.

State v. Pinnick, 9th. Dist. Wayne, No. 22AP0057, 2024-Ohio-687. The trial court properly considered the defendant’s prior OVI conviction to enhance penalties and treat the current conviction as a third offense within the ten year period. The prior OVI conviction was pending appeal at the time of the third OVI conviction. The appellate court found that the stay pending appeal only related to execution of judgment, not the validity of the prior OVI conviction.

Recklessness as penalty enhancement.

United States v. Histed, 2024 U.S. App. Lexis 4110, No. 22-2080 (6th. Cir. 2024). Upholding reckless endangerment sentencing enhancement by creating a substantial risk of death or serious bodily injury to another person in the course of fleeing from a law enforcement officer. In this case after leaving a suspected drug house, the police observed the defendant speeding, littering, and improperly switching lanes. When the police attempted to stop the defendant over, he

initially pulled over to the shoulder and slowed down, but then accelerated, passing other cars at a high rate of speed from the road shoulder. The defendant then weaved in and out of traffic on a congested two lane road in an attempt to evade the police. Noting that the defendant’s conduct was well outside the ordinary driver's standard of care and created a substantial risk of an accident, the court found the defendant “earned the enhancement.”

United States v. Axline, 2024 U.S. App. Lexis 4506, No. 23-5141 (6th. Cir. 2024). Conviction for vehicular homicide and vehicular assault on federal land were affirmed. The defendant, age 19, lost control of the car going ninety miles an hour and crashed into an embankment, killing one of his passengers and seriously injuring the other. The collision occurred on a winding mountain road with a forty-five mile an hour speed limit. The defendant’s blood/alcohol level, estimated between 0.065 and 0.081, was over the 0.02 per se limit under state law.

The court found the defendant’s two separate conscious decisions, underage drinking and reckless driving, supported an upward variance from the sentencing guidelines. The court further found that the case was unusual not only due to the defendant’s criminal history involving repeat substance abuse offenses, including a conviction for alcohol underage a month prior to the collision, but also the lethal combination of his underage drinking and reckless driving, as well as the lasting impact of the offenses.

Author’s Note: In both Histed and Axline the defendant was not charged with reckless driving and recklessness was not an element of the offenses charged. The defendant’s reckless conduct in the underlying offense was a penalty enhancement found by the trial court upon review of the facts in the case.

R.C. 4510.15 authorizes the trial court to impose a class five license suspension (6 months to three years) when a defendant has been found guilty of a traffic offense other than reckless operation, but the underlying conduct was reckless. R.C. 4510.15 does not charge an offense but merely sets forth a possible, additional penalty. Columbus v. Tyson, 19 Ohio App.3d 224 (10th. Dist. 1983).(Upholding license suspension for red ,light violation.)

Honorable Mention.

State v. Kalvitz, 3d. Dist. Henry, Nos. 7-23-11 & 7-23-12, 2024-Ohio-392. Charges included illegal cultivation of marijuana. Issues on appeal are not drug related, but a good discussion of a judge’s involvement in plea negotiations.

State v. Zachary, 1st. Dist. Hamilton, No. C-230435, 2024-Ohio-422. Charges included drug possession. Issues on appeal are not drug related, but a good discussion of factors to consider on motion to withdraw presentence plea.

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