Pat Carroll

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Traffic Signals — May 2024

TRAFFIC SIGNALS NEWSLETTER

Dear Colleagues,June 3, 2024

May, 2024 monthly newsletter setting out 1) 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 and 2) upcoming education opportunities. Although not all of the cases involve impaired driving, they raise pretrial and post-judgment issues that would apply to OVI cases.

As a judge for thirty two years, I understand the time constraints and difficulty with keeping up with recent court decisions. As the Ohio Judicial Outreach Liaison with the American Bar Association, I want to provide current case law and other information to you.

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 call or email me with any feedback.

Patrick Carroll, retired judge

Ohio Judicial Outreach Liaison to the ABA

[email protected]

(216) 403-5521

Note: Effective June 17, 2024, the Supreme Court of Ohio amended the case citation form, eliminating both the county and the case number from the citation. The amended citation only requires the WebCite and the appellate district for appellate cases decided after May 1, 2002. Paragraph numbers (Par. or ¶ ) instead of page numbers should be used for specific references within a decision. The amended Writing Manual is on the Supreme Court of Ohio’s website.

  1. Summary of cases, April, 2024.

Probable cause

  1. Stop

State v. Ghimire, 2024-Ohio-1747 (5th. Dist.) Convictions for OVI and marked lanes were affirmed. The officer initially saw the car driving with “poor lane position,” made a U-turn to follow the car, and stopped the defendant after observing the defendant drifting across the marked dash lane lines from the right lane. The driver has a strong smell of alcohol and bloodshot eyes. The defendant agreed to the field sobriety test and a portable breathalyzer. The officer saw something in the defendant’s mouth which was chewing tobacco. While administering the portable breath test, the officer directed the defendant to spit it out and the officer checked the defendant’s mouth for any residue. The defendant was taken to the police station and submitted to a breathalyzer 45 minutes later. The BAC was .119. The defendant was charged with OVI and marked lanes violations. The defendant entered a no contest plea, found guilty, and raised the suppression order on appeal.

Regarding the stop, the court found that the marked lane violation observed by the officer provided a reasonable and articulable basis to stop the defendant. Quoting State v. Millard, 2023-Ohio-1342 (11th. Dist.),

It is well established that [a]n officer's observation of a traffic violation provides probable cause to stop a vehicle. Crossing over marked lanes is a citable traffic violation under R.C. 4511.33. Violations of traffic laws not only give rise to a reasonable suspicion that a crime is or about to occur but can form probable cause for a traffic stop. A traffic stop is reasonable when an officer possesses probable cause to believe an individual committed a traffic violation.

(Par. 15. Citations omitted.). In Millard the found that the testimony of the officer alone was sufficient to establish the marked lane violation. In the present case the court had the benefit of the police video as well. The court in Ghimire found the stop was justified as an investigatory stop based on the observed lane violation.

Breathalyzer challenge.

The defendant challenged the breathalyzer results from the Intoxilyzer 8000, which is approved for use under Ohio Administrative Code Section 3701-53-03. The court noted the Ohio Administrative Code does not specifically provide for a 20 minute observation period, but instead comply with the “operational checklist” which for some breathalyzers include a 20 minute observation period before testing. (Par. 22. Citations omitted.) The Intoxilyzer 8000, however, requires the breath test in accordance with the machine's "instrument display," not an "operational checklist." (Par. 22). Although the record did not indicate whether the instrument display included a 20 minute observation period, the state substantially complied with the requirement with the 45 minute interval.

The court also rejected the defendant’s challenge that the breathalyzer results might be tainted by any residual tobacco juices when the test was administered. The court noted than neither the Ohio Administrative Code nor case law imposed this requirement. Moreover, the purpose of the mandatory observation period is to prevent oral intake of any material by the defendant during the observation period and anything in the defendant’s mouth prior to the observation period could not be verified. Relying on Bolivar v. Dick, 76 Ohio St.3d 216, 218, 1996-Ohio-409. (Par. 22). Nor was there any proof of either residual tobacco or other lingering digestive juices having any impact on the breath test results.

Wilds v. Warden, Chillicothe Corr. Inst., Case No. 1:22-cv-508, 2024 LEXIS 90932, 2024 WL 2291970, (S.D. Ohio, 2024). Habeas corpus writ denied. The issue raised was ineffective assistance of counsel for failing to file a motion to suppress. In this case the defendant was stopped after driving twice over the center line in violation of R.C. 4511.25(A). The court in Wilds distinguished State v. Turner, 163 Ohio St.3d 421, 2020-Ohio-6773, which held that driving on or touching the white fog line within the traffic lane (R.C. 4511.33(A)(1)) was not sufficient probable cause to justify a traffic stop. The court in Wilds held driving over the center line was a different offense and a valid basis for a traffic stop. As such, the court in Wilds agreed with the state court of appeals of no reasonable probability that a motion to suppress would have succeeded to change the result in this case. 2021-Ohio-2554 (4th. Dist.).

State v. Hollie, 2024-Ohio-2096 (5th. Dist.) Conviction for felony drug charge affirmed with remand on sentencing. The defendant was stopped for following another vehicle too closely, being one and one-half car lengths behind a dump truck going 60 mph. At the stop the officer asked to search the car after seeing three cell phones in the cupholder. The defendant consented to the search. A fentanyl based compound was found under the steering column and later at the jail, cocaine was found in the defendant’s clothing.

Affirming the order overruling the motion to suppress the stop, the court, relying on Dayton v. Erickson, 76 Ohio St.3d 3, 9 (1996), noted when an officer observes a traffic violation the stop is constitutionally valid. The defendant’s driving so close behind the dump truck was in violation of R.C. 4511.334(A0, and therefore, the motion to suppress the stop was overruled.

Driver’s license suspension

Regarding the sentence, the defendant was found guilty of possession of cocaine (R.C. 2925.11(C)(4)(F)) with a forfeiture specification (R.C. 2941.1417(A)) and a major drug offender specification (R.C. 2941.1410(A)), illegal conveyance of drugs of abuse onto grounds of a specified governmental facility (R.C. 2921.36(A)(2)), and possession of a fentanyl-related compound (R.C. 2925.11(C)(11)(c)).

The trial court imposed two consecutive, five year driver’s license suspension for a total ten year license suspension. R.C. 2925.11(E) provides the trial court “may suspend the offender's driver's or commercial driver's license or permit for not more than five years.” Although the court recognized “a driver's license suspension serves several legislative goals, including being an effective means to protect other drivers and passengers on the roads and to deter future drug use and punish offenders, sentencing provisions in the Revised Code are to be strictly construed against the state and liberally construed in favor of the accused. (Par. 44. Citations omitted.).

The court found although consecutive incarceration sentences are expressly permitted by R.C. 2929.41(B), there is no comparable statutory authority for imposing consecutive driver’s license suspensions. (Par. 44, citing State v. Phinizee, 1996 Ohio App. LEXIS 3064, 1996 WL 391722 (2d. Dist.)). The case was remanded on the driver’s license suspension issue with the balance of the sentences affirmed.

  1. Investigation after stop.

In re J.F. 2024-Ohio-1950, (1st. Dist.). Juvenile's adjudication for improper handling of a firearm in a motor vehicle and order overruling motion to suppress were affirmed. The defendant was stopped for illegally tinted windows. The juvenile did not contest the basis for the stop, but asserted the officer’s order to roll down the car window where the gun was seen in plain view on the back seat was unreasonable. The court found the order to roll down the window was a minimally invasive additional intrusion to the lawful traffic stop that was reasonable and no more intrusive than necessary under the circumstances to protect the officers' safety.

Relying on United States v. Stanfield, 109 F.3d 976, 978 (4th. Cir. 1997), the court in J.F. recognized the government’s substantial interest in officer safety against the privacy interest of the vehicle occupants when heavily tinted windows prevented the interior compartment from being viewed. (Par. 22.). The court also noted the reduced privacy interest of vehicle occupants. Moreover, a driver is required to comply with routine requests for identification and registration in a traffic stop situation and would need to roll down the window is part of this procedure. (Par. 23.).

Regarding the adjudication, the court noted that although a person’s mere presence near a firearm alone does not create an inference of constructive possession, it may be inferred from a combination of acts, including awareness of the firearm and being within easy reach, relying on State v. Phillips, 2014-Ohio-5162, (10th. Dist.). (Par. 35.). In this case, evidence that the juvenile was the sole occupant of the car, exercising dominion and control of the vehicle when the firearm was found, admitted that he had previously touched the firearm, and the firearm was plainly visible from outside the car when the window was rolled down, was sufficient to support the trial court’s judgment.

  1. Odor of marijuana

State v. Wright, 2024-Ohio-1763 (1st. Dist.) Order overruling motion to suppress was affirmed. The defendant was seen by an officer walking into a known drug house emptyhanded and walking out a few minutes later with a suitcase. As the defendant drove away he was followed by another officer and pulled over after a traffic offense. A drug dog was called in and made a positive hit on the defendant’s car.

The issue on appeal was whether the drug dog’s alert established probable cause to search the defendant’s vehicle because the dog’s training did not allow the dog to differentiate between legal and illegal cannabis products. In this case the certified drug-detection dog was trained to detect and alert to the odor of marijuana, cocaine, heroin, and methamphetamine. The dog could not distinguish among medical marijuana, hemp products, and illegal forms of marijuana because all three products come from variations of the same plant, cannabis. (Par. 6.)

The court noted that:

The difference between medical marijuana and illegal marijuana under Ohio law is that medical marijuana is "produced, cultivated, processed, dispensed, tested, possessed, or used for a medical purpose." [R.C. 3796.01(A)(2)] And the difference between "marijuana" and "hemp" under Ohio and federal law is the level of THC present in the cannabis plant. (Par. 11.)

In State v. Moore, 90 Ohio St. 3d 47, 2000-Ohio-10, the Court held the smell of marijuana alone by a person qualified to recognize the odor, is sufficient to establish probable cause to conduct a search. (Syllabus of the Court). The defendant argued the holding in Moore was no longer valid due to subsequent legalization of medical marijuana and hemp which have the same odor. The court in Wright stated the “fact that illegal marijuana and legal forms of hemp have the same odor is irrelevant so long as some forms of marijuana remain illegal” (Par. 22). The court noted a number of other Ohio appellate districts (Par. 22) and appellate courts in other states (Par. 23.) have also rejected this argument. (Citations omitted). The court in Wright also noted there was other evidence of probable cause, including the defendant seen leaving the drug house, being combative with the officers at the stop, and other factors.

Affirming the conviction and order overruling the suppression motion, the court in Wright stated, “While the change in the law after Moore may mean that the odor of cannabis no longer ‘undoubtably’ identifies a forbidden substance, the Fourth Amendment requires consideration of the totality of the circumstances.” (Par. 27.).

Operation and alcohol content

State v. Sanyasi, 2024-Ohio-2042 (5th. Dist.). OVI conviction affirmed. The issue in this case concerned 1) the officer’s jury trial testimony on correlation between field sobriety results and 2) probable alcohol level and refusal to submit to breath test with a prior refusal OVI conviction.

Field sobriety test correlation.

Citing State v. Bresson, 51 Ohio St.3d 123 (1990), the court in Sanyasi noted a properly qualified officer may testify at trial regarding a driver's performance on the HGN test for probable cause to arrest and whether the driver was operating a vehicle while under the influence of alcohol. An officer may not testify, however, to what a defendant's blood-alcohol content would be based solely on the HGN results. (Par. 20). In the present case the court noted the officer testified, based on his training and the HGN results, on a statistical probability that an individual who had six of six clues on the HGN test would have a BAC level over the legal limit.

The court reviewed other cases affirming OVI convictions in which the officer testified about field sobriety test results and a defendant’s probable alcohol level. State v. Martin, 2005-Ohio-1732 (4th Dist.) & State v. Allen, 2010-Ohio-4124 (10th Dist.). (Par. 23-24). In both cases the appellate courts found, based on other evidence of impairment, the admission of this testimony was harmless error. The court in Sanyasi noted, however, the comment by the court in Allen that the officer’s opinion testimony “may be problematic and perhaps should not have been admitted absent expert testimony.” (Par. 24.). In the present case the court noted the officer did not testify to what he believed the actual BAC level based on the HGN test results, but that based on his training, there was an eighty or eighty seven percent statistical probability that an individual who failed the HGN test would have a BAC level above the legal limit. Based on other, additional evidence on the defendant’s impairment, the officer’s testimony was harmless error.

Refusal to submit to breath test.

Regarding the issue of refusal, the defendant attempted to take the breathalyzer test, but did not provide a sufficient sample after three attempts. The officer testified that on the third attempt the defendant put his lips on the tube but did not blow into the machine. The breathalyzer gives off an audible sound when air is going into the tube, which it did not in this case. The officer marked it as a refusal.

The court found the issue of the defendant’s refusal was a factual issue to be resolved by the jury. The court gave the Ohio Jury Instruction definition of “refusal” to the jury. From the record at trial, the court found there was sufficient evidence presented for a reasonable jury to find the defendant refused the breath test.1

Prosecutor’s closing argument.

The defendant asserted prosecutorial misconduct for raising the defendant’s prior OVI conviction in closing argument. The defendant was charged with having a prior OVI conviction and prior refusal within twenty years. R.C. 4511.19(A)(2). The court noted the prior conviction was an element of the charge. (Par. 35, citations omitted). Similarly, relying on State v. Hoover, 123 Ohio St.3d 418, 2009-Ohio-4993, although refusal to consent to testing is not, itself, a criminal offense, the refusal is an additional element that must be proven beyond a reasonable doubt with a R.C. 4511.19(A)(2) offense. Given the state’s burden to prove beyond a reasonable doubt that the defendant had a prior OVI conviction within 20 years and that he had refused to take a chemical test, it was not error for the prosecutor to refer to the defendant’s prior conviction in closing argument.

Author’s Note: There was no objection to the officer’s testimony about the HGN test results and probable alcohol level at trial and the appellate court reviewed the issues on the basis of plain error.

State v. Dale, 2024-Ohio-2001 (1st. Dist.) OVI conviction affirmed as supported by sufficient evidence. The officer watched the defendant as the defendant pulled over to urinate at night in a public park. When he approached the defendant the officer smelled a strong alcohol odor from the defendant’s breath. The defendant was stumbling and appeared confused about where he was going. After an initial denial, the defendant admitted drinking one and a half beers. The defendant was asked to perform field sobriety tests which the video showed the officer explaining to the defendant multiple times. Failing the field sobriety tests, the defendant was arrested for OVI. The defendant refused the breathalyzer and became combative when told his driver’s license would be suspended. (The defendant succinctly evaluated his situation, "If I blow or if I don't, I'm f***ed."

The defendant challenged the conviction on the grounds the officer did not witness any traffic infractions or erratic driving. In affirming the conviction, the appellate court noted an impaired OVI offense “does not require a driver to exhibit impaired driving, ‘rather, the driver's ability to drive must be impaired’” and the state "need only show an impaired driving ability" under R.C. 4511.19(A)(1), which prohibits operation of a vehicle under the influence of alcohol. (Par. 15, citations omitted.).

State v. Adkins, 2024-Ohio-1762 (1st. Dist.). OVI driving under suspended license, and drug paraphernalia convictions affirmed. The officer observed a gold car, matching the description of a shooting incident earlier that night, traveling at a high rate of speed. The car stopped abruptly by the sidewalk, squealing the tires, and a passenger got out of the car. The officers stopped the car to talk with the defendant/driver. The officers testified the defendant’s breath smelled of alcohol. He also was slurring his speech. A bullet and an empty whiskey bottle were found in the case. Although the defendant requested to take a breath test at the scene, he later refused the test when offered at the police station. The officers testified they did not offer field sobriety tests because the defendant became confrontational at the scene.

The court noted that to prove the defendant was under the influence of alcohol, the state need not show any particular alcohol concentration in the defendant's body through chemical or other tests.  The focus is on whether the state proved that the defendant “had consumed alcohol sufficient to ‘adversely and appreciably impair his actions or mental processes and depriv[e] him of that clearness of intellect and control of himself which he would otherwise have had.’ This can be shown by evidence that the defendant admitted to consuming alcohol or that the defendant exhibited physical indicia of intoxication such as glassy or bloodshot eyes, slurred speech, staggering, swaying, or having the odor of an alcoholic beverage on his or her breath or person.” (Par. 24, citations omitted.)

Regarding the weight of the evidence to support the conviction, the appellate court noted that discrepancies between the body camera recordings and the officers’ testimony at the trial two years later did not by itself show the officer’s testimony was not credible. The officers’ observations of the defendant at the scene coupled with the high rate of speed and erratic driving was sufficient to support the conviction.

Intervention in lieu of conviction.

State v. Leon, 2024-Ohio-1724 (9th. Dist). A defendant charged with failure to comply with an order or signal of a police officer, a felony of the third degree, was not eligible for intervention in lieu of conviction (IILC) under R.C. 2951.041. A third degree felony is statutorily excluded from participation in IILC and the trial court was not required to conduct a hearing.

Author’s note: An OVI offense, by R.C. 4511.19(A) or substantially similar municipal ordinance, is expressly excluded from intervention in lieu of conviction. R.C. 2951.041(B)(2). Other misdemeanor offenses may be eligible for intervention in lieu of conviction if:

1) drug or alcohol usage by the offender was a factor leading to the charged criminal offense,

2) at the time of committing that offense, a factor leading to the criminal behavior by the defendant was

A) a mental illness,

B) a person with an intellectual disability, or

C) a victim of human trafficking or compelling prostitution.

And

  1. No prior felony conviction of an offense of violence, or

  2. The alleged victim of the offense was not sixty-five years of age or older, permanently and totally disabled, under thirteen years of age, or a peace officer engaged in the officer's official duties at the time of the alleged offense, or

  3. Not an offense that would result in the defendant being disqualified under R.C. Chapter 4506 from operating a commercial motor vehicle or would subject the offender to any other sanction under that chapter. 

State v. Alvendia, 2024-Ohio-2012 (7th. Dist.). Compliance with Criminal Rule 11 is required when the defendant enters a guilty plea to participate in intervention in lieu of conviction program, but the trial court is not required to go through the plea procedure again for a violation of the IILC program. R.C. 2951.041(F) requires the supervising authority to promptly advise the trial court of the violation. The trial court shall then schedule a hearing to determine any noncompliance with the terms and conditions of IILC. If the court find a violation, the court may:

  1. Continue the program and may include additional terms and conditions, or

  2. Make a finding of guilty from the prior plea, terminate the program, and impose an appropriate sentence.

Community control supervision issues

  1. Alcohol or marijuana prohibition.

State v. Ballish, 2024-Ohio-1885, (11th. Dist.). Conviction for theft was reversed based on prohibition of no drugs or alcohol as a condition of probation was not related to underlying offense. R.C. 2929.27(A)(8) authorizes a court to include drug and alcohol use monitoring, including random drug testing as a condition of probation with a misdemeanor offense. The court’s authority to impose this condition is limited to the standard set out in State v. Jones, 49 Ohio St.3d 51 (1990), that the condition:

1) is reasonably related to rehabilitating the offender,

2) has some relationship to the crime of which the offender was convicted, and

3) relates to conduct which is criminal or reasonably related to future criminality and serves the statutory ends of probation.

(Par. 8.). Accord, State v. Talty, 103 Ohio St. 3d 177, 2004-Ohio-4888. The court in Ballish reaffirmed the holding in Jones and Talty in light of legislative amendments since those cases were decided. Upon review, the court in Ballish found the trial court record was devoid of any facts indicating that alcohol or drugs contributed to the theft offense of which the defendant was convicted in the instant case. Although the trial court noted at the time of sentencing the defendant had a record of past alcohol and drug related offenses in the court, all three of the conditions under Jones, are required and the second factor was not met due to the nature and facts of the underlying offense. (Par. 13.).

Author’s Note: The holding is Ballish is consistent with State v. Lynn, 2023-Ohio-4429 (5th Dist.) vacating a probation condition prohibiting medical marijuana use when the underlying offense was for attempted felonious assault and there was nothing in the record to indicate that drugs or alcohol were involved in the offense.

United States v. Young, Case No. 23-3621, 2024 LEXIS 12263, (6th. Cir. 2024). Upholding condition of alcohol prohibition and screening for supervised release. Under the federal system, a court may impose a special condition of supervised release when the condition:

  1. Is reasonably related" to certain sentencing factors under 18 U.S.C. § 3553,

  2. involves no greater deprivation of liberty than is reasonably necessary for the purposes of the sentencing factors, and

  3. is "consistent with pertinent policy statements issued by the Sentencing Commission."  18 U.S.C. § 3583(d). 

Thus, similar to the Ohio decisions in Jones and Talty, a prohibition is permitted if it is reasonably related to the offense. In Young, the court noted the defendant had over fifty convictions and a history of substance abuse starting at age 11 (alcohol), age 14 (marijuana), age 17 (cocaine), and age 23 (heroin and fentanyl). Moreover, the defendant admitted that he had a substance abuse problem and his criminal activity was related to his addictions. In this case the district court found that many of the defendant’s offenses posed a danger to the public and the need for rehabilitation. The court ordered the defendant to participate in a substance abuse treatment program while incarcerated and while on supervision with the special condition prohibiting the use of alcohol to facilitate that effort.

B) Violation for continued use.

State v. Vargas, 2024-Ohio-1797 (2d, Dist.). Affirming revocation of probation and imposing previously suspended 30 month incarceration when the defendant tested positive for methamphetamines three weeks after being placed on community control supervision. The defendant had plead guilty to aggravated drug possession, a third-degree felony with the agreement of community control supervision. The community control terms included the defendant could "not possess, use, purchase or have under his control any narcotic drug, other controlled substance, mood altering substance, or illegal drugs.” (Par. 7.). While the drug screen did not show the exact amount of methamphetamines in the defendant’s system, the trial court was not required to believe the defendant’s explanation of inhalation of second-hand smoke.

Tipsters, informants, and bystanders.

State v. Clymer, 2024-1877 (5th. Dist.). OVI conviction and order overruling motion to suppress were affirmed. An ODOT supervisor was notified by a traffic flagger about an argumentative driver in a construction zone with stopped traffic. The supervisor arrived at the scene and spoke to the driver/defendant who was attempting to go around a stopped truck in the work zone. After the defendant was cleared to leave, the supervisor followed the defendant out of safety concern with the narrowed road and noticed some swerving. The supervisor called the sheriff’s office stating the defendant may have been drinking.

While speaking to the sheriff, the supervisor saw the defendant pull into a business, turn around, and go back into the construction zone. The officer followed the defendant’s car through the construction zone. The officer testified he did not see any unusual driving by the defendant, but he had received two calls from the supervisor about the driver/defendant and was concerned with possible disorderly conduct or aggravated menacing offenses if the defendant was going back to continue his prior confrontation with the flagger.

The officer followed the defendant into a business parking lot and approached the driver who was parked in front of the officer. The officer noticed both a strong odor of alcoholic beverage and bloodshot, glassy eyes. The defendant admitted drinking and submitted to a breath test with a 0.159 blood/alcohol result.

The issue raised in the suppression motion was the officer’s reliance on the supervisor’s calls to stop the defendant. Applying the test set out in Maumee v. Weisner, 87 Ohio St. 3d 295, 1999-Ohio-68, the court in Clymer held that the supervisor met the criteria as a citizen informant with a presumption of reliability. The court further noted the supervisor’s reliability was bolstered by providing first-hand knowledge from an eyewitness account as it happened, rather by memory at a later time, and the supervisor’s motivation for the call as a motorist watching another driver weaving in a construction zone. (Par. 16, 18.). The facts related to the officer included the report of a traffic violation by the defendant driving around a semi-truck that was stopped in the construction zone and the concern for the traffic flagger’s safety due to the prior altercation. (Par. 19). The court concluded that the information provided by the supervisor was trustworthy and justified the officer’s stopping the defendant.

The concurring opinion agreed on the reliability of the supervisor as an informant, but found the report of “some erratic driving,” without specific conduct, and the possibility that the defendant was going back to confront the traffic flagger were not sufficient to reasonable, articulable suspicion of criminal activity to stop the defendant. The concurring opinion noted, however, that the officer did not stop the defendant, but instead approached the defendant’s stopped car after the defendant voluntarily pulled off the road into a parking lot.

State v. Shaw, 2024-Ohio-2022 (7th. Dist.). Felony OVI conviction and order overruling motion to suppress were affirmed. While running radar around 2:00 p.m., a motorist approached the officer and told him a man was asleep behind the wheel of a pickup truck at a nearby intersection. The officer drove to the location, approximately 1/4 mile away and saw the truck at the traffic light with a number of cars behind the truck. The officer pulled behind the truck. Although the officer did not tell the driver/defendant to exit the truck, the driver got out of the car and walked around to the passenger side of the truck and then went back to get into the truck. The officer observed the defendant was unsteady as he walked. The officer got out of his car and stopped the defendant before the defendant got back into his truck. Traffic was obstructed by the defendant’s stopped truck and the defendant getting out and walking around the intersection. A pedestrian standing at the side of the truck told the officer the truck had not moved for three cycles of the traffic light.

As the officer got closer to the defendant the officer could smell alcohol on the defendant’s breath. The defendant first denied consuming any alcohol, but later admitted he had” one or two.” Field sobriety tests were conducted and the defendant was arrested for OVI. After a motion to suppress was overruled the defendant entered a no contest plea to the charge and was found guilty.

Regarding the motion to suppress, relying on State v. Tidwell, 165 Ohio St. 3d 57, 2021-Ohio-2072, the court in Shaw stated “The reasonableness of an investigatory stop is determined by considering the totality of the circumstances as they were known to the officer prior to the stop, together with reasonable inferences that could be drawn from the circumstances, bearing in mind that each piece of information may vary greatly in its value and degree of reliability.” (Par. 16.) The court also noted that reasonable suspicion "need not rule out the possibility of innocent conduct." citing United States v. Arvizu, 534 U.S. 266, 277 (2002).

Although neither the initial informant-motorist nor the pedestrian at the side of the truck who gave information to the officer were identified, reasonable cause for an investigative stop was not limited to the officer’s personal observation and may include information supplied by another person.'" (Par. 18. Citations omitted.). In the present case the appellate court stated the two bystanders did not fall neatly into one of the three types of informant/tipster classifications set out by the court in Maumee v. Weisner, 1999-Ohio-68, 87 Ohio St.3d 295, (1) anonymous informants, 2) known informants (someone from the criminal world who has provided previous reliable tips), and 3) identified citizen informants.). Instead, the face-to-face unidentified informant was similar to the informant in Tidwell with the reasonableness of the investigative stop based on the contemporaneous nature of the customer's tip and the officer's own observations of the defendant’s impairment at the scene. (Par. 25, 28.) The court in Shaw also noted the informant's unidentified status did not necessarily extinguish all indicia of reliability from the informant's tip given the potential for subsequent positive identification. See, Navarette v. California, 572 U.S. 393, 397(2014). In light of the totality of the circumstances, including obstructed traffic with the defendant’s truck as the lead vehicle, the officer’s observations, and the statements by the informant/bystanders in real time, the court found there was a reasonable basis for the stop and inquiry of the defendant.

The defendant also asserted the trial court improperly relied on hearsay evidence. The appellate court stated that as the issue at the suppression hearing was the admissibility of evidence, the rules of evidence did not apply. (Par. 35, citations omitted)

Lawyers; traffic and discipline violations.

Disciplinary Counsel v. Van Bibbler, __ Ohio St.3d___, 2024-Ohio-1702. Two year suspension from the practice of law in Ohio with the entire suspension conditionally stayed with conditions and supervision imposed for five traffic stops, dishonesty during those stops, being charged with and convicted of traffic offenses resulting from those stops, and his failure to abide by the resulting court orders. The respondent was arrested for an OVI offense in Greene County in 2017, later amended with a no contest plea to a charge of reckless operation. The respondent did not show proof of insurance or reinstate his driver’s license but continued to drive.

In 2018 the respondent was charged in Delaware County with driving under a suspended license and other charges. He plead no contest to an amended suspended license charge with a fine. An additional suspension was imposed for lack of liability insurance. The respondent was given a payment hearing date but did not pay the fine or appear for the hearing. As a result, a vehicle registration block was imposed.

In 2020 the respondent was stopped in Logan County for speeding, reckless operation, and driving under a suspended license, and expired license plate. The respondent told the officer he had just purchased the car when he had owned it for about a year. The respondent could not get valid plates due to the registration block. The respondent plead guilty to speeding and reckless operation with a 90 day license suspension.

A month later in February, 2020, the respondent was stopped in Champaign County for driving under a suspended license. The defendant was found guilty, given a fines and suspended jail sentence with the commitment to the court he would not drive without a valid license. The respondent was given time to pay his fine with a payment hearing date. The respondent did not pay the fine or appear for the hearing. A warrant was issued in October, 2020, and the fine was paid four months later.

The respondent subsequently received a notice from the disciplinary counsel for his violations. The respondent agreed not to drive without a valid license. No discipline charges were filed based on his representation. In November, 2021, the respondent was stopped in Crawford County for a bad light, suspended license, and expired registration. The respondent plead no contest, found guilty, paid a fine, and self-reported to the discipline counsel. The respondent reinstated his driver’s license in January, 2022.

The discipline charges in this case included failing to comply with court orders, continuing to drive with a suspended license, and giving false information to police officers. There were also other, unrelated, nontraffic discipline charges. The respondent was found to be in violation of:

1)Prof.Cond.R. 3.4(c) (Knowingly disobey an obligation under the rules of a tribunal) by failing to comply with the Bellefontaine Municipal Court's 90-day license suspension and multiple court orders regarding the payment of fines, costs, and related court appearances; 

2) Prof.Cond.R. 8.4(c) (engage in conduct involving dishonesty, fraud, deceit or misrepresentation) by providing false information to law-enforcement officers in Logan and Champaign Counties regarding the purchase of his vehicle; and

3)  Prof.Cond.R. 8.4(h) (engage in other conduct that adversely reflects on the lawyer’s fitness to practice law) by failing to comply with multiple traffic laws and driver's-license suspensions.

Accepting the recommended sanction to stay any suspension, the Court considered both mitigating and aggravating factors, but noted the board’s findings that the respondent’s deliberate violation of the law nonetheless reduces public confidence in the legal profession. (Par. 43). The dissenting opinion urged six months of the stay suspension should be imposed, noting that "a fully stayed suspension here does not send a 'strong message' to attorneys across Ohio,". (Par. 59. Citations omitted.)

Disciplinary Counsel v. Gernert, __Ohio St.3d __, 2024-Ohio-1946. Two year suspension from the practice of law in Ohio with the entire suspension conditionally stayed with conditions and supervision imposed for two separate OVI convictions in four month period and probation violation. The respondent was found to be in violation of Prof. Cond. R. 8.4(d), prohibiting a lawyer from engaging in conduct that is prejudicial to the administration of justice.

Accepting the recommended sanction of a stayed suspension, the Court noted “the primary purpose of the disciplinary process is not to punish the offender but to protect the public from lawyers who are unworthy of the trust and confidence essential to the attorney-client relationship."  (Par. 39, citations omitted.). The Court found the treatment and monitoring conditions imposed with the stay will both protect the public and support the respondent’s recovery.

Author’s note: A common mitigating factor in both discipline cases was the respondent’s enrollment in the Ohio Lawyers Assistance Program (OLAP). The practice of law, and litigation in particular, is a stressful profession which often leads to alcohol or other substance abuse. Noticing a colleague, whether judge or practitioner, may be headed on this path, information about OLAP is readily available on both the Supreme Court of Ohio and the Ohio Judicial Conference websites.

Procedural issues.

  1. Motions

Hunt v. City of Nelsonville, Case No. 2:23-cv-1758, 2024 LEXIS 80361, (S.D. Ohio 2024). Motion to compel production of Law Enforcement Automated Data System (LEADS) information in a civil rights action was denied. This case involves the seizure of a motorcycle by the police on the defendant’s property and citation for operating a motorcycle without a license. Prior to the seizure the defendants asserted the officers ran a LEADS showing the motorcycle was validly registered, but the plaintiff has a suspended driver’s license and no motorcycle endorsement. A critical issue was when the report was run and the plaintiff’s license status.

The Ohio Department of Public Safety(ODPS) intervened and objected to the subpoena on the grounds that it required disclosure of privileged or protected information under Ohio law and the common law privilege for law enforcement investigatory information, R.C. 109.57, 2913.04(C)-(D); Ohio Admin. Code 4501:2-10-06), and disclosure of the information sought would be a criminal offense under Ohio law. ( Ohio Rev. Code § 2913.04(C)).

Both parties agreed that the LEADS information was highly relevant to the probable cause issue, but intervenor ODPS resisted disclosure, asserting only "duly authorized law enforcement and/or criminal justice agencies" may use LEADS data, which the parties in this civil case are not, and only for "the administration of criminal justice" which does not include a civil case.

The federal magistrate recognized the narrow scope of the inquiry (limiting the information to one entry on the LEADS report), the privilege raised by ODPS, and the nondisclosure would effectively prevent a party from proving their claim or defense because all or the bulk of the most relevant evidence contained privileged communications. Instead of deciding the issue, the magistrate denied the motion without prejudice and continued the case to permit the parties to pursue obtaining the information by other means. (e.g. response to interrogatories identifying the person who obtained the information from LEADS or deposition of who and when the LEADS inquiry was made.)

State v. Williams, 2024-Ohio-1912 (9th. Cir.). OVI conviction and order overruling untimely motion to suppress were affirmed. The defendant filed a motion to suppress after the time limit to extend the time for filing the motion. When the motion for extension was overruled, the defendant filed a motion for leave to file a motion to suppress which was also overruled. The defendant entered a plea of contest, found guilty, and appealed the trial court’s order on the motion to suppress.

Traffic Rule 11(C), similar to Criminal Rule 12(H), requires pretrial motions to be filed within thirty-five days after arraignment or seven days before trial, whichever is earlier. On appeal, the court found that the failure to file the motion for extension of time prior to the deadline in Traffic Rule 11(C) operated as a waiver. (Par. 7.) Regarding the motion for leave, the appellate court found did not explain why the defendant was justified in filing the first motion after the deadline. (The appellate decision does not indicate if a motion to suppress was attached to the motion for leave or whether the defendant was seeking more time to file the motion to suppress.). Upon review of the record, the appellate court found the trial court did not abuse its discretion in denying the untimely motions.

Author’s note: In State v. Perry, 2012-Ohio-4656 (3d. Dist.) the court noted that although there is no requirement to attach the proposed motion to suppress to the motion for leave, failure to do so deprives the trial court to determine if there was a valid reason to grant the motion for leave.

State v. Washington, 2024-Ohio-1924 (11th. Dist.). Order overruling post-judgment motion to dismiss OVI conviction was affirmed. The defendant was charged with OVI and speeding on November 18, 2020 and found guilty of both charges in a bench trial on January 13, 2021. The day after the defendant was served with the OVI citation, she was also indicted on numerous felony drug and firearm charges arising out of the same incident. The defendant was not served with the indictment until June 1, 2021.

Meanwhile, the defendant appealed her OVI conviction. The appeal was dismissed on November 1, 2021 due to a sentencing error and lack of final appealable order. The defendant was re-sentenced on December 9, 2021 and the conviction was affirmed on appeal on September 20, 2022. (2022-Ohio-3478 (11th. Dist.)). On June 26, 2022, while there was a pending probation violation, the defendant moved to dismiss the OVI conviction on the grounds of miscarriage of justice” and double jeopardy due to the felony charges. (The felony charges were “dismissed on February 1, 2022.) The motion to dismiss on double jeopardy grounds was overruled by the municipal court as the issue related to the felony changes, not the OVI conviction. The motion of dismiss for miscarriage of justice was overruled because the grounds raised by the defendant could have been raised on direct appeal.

The appellate court characterized the defendant’s post-conviction motion to dismiss as an irregular motion not recognized by the rule of criminal procedure. (Par. 26-27.). A motion to dismiss is a pretrial motion. Crim. R. 12(C). (Par. 30.). The court held a postconviction motion to dismiss was a nullity and the trial court did not abuse its discretion by denying the motions.

Author’s Note: Municipal courts do not have jurisdiction to hear post-conviction relief petitions under R. C. 2953.21. State v. Cowan, 101 Ohio St. 3d 372, 2004-Ohio-1583. See also, State v. Burner, 2020-Ohio-2930 (1st. Dist.).

  1. Pleas.

State v. Pennington, 2024-Ohio-2020 (12th. Dist.). Convictions for failure to comply with police order and felony OVI offenses were affirmed. While out on bond on another pending OVI charge, the defendant fled from officers in his pickup truck after numerous traffic violations. The defendant nearly crashed into a number of park car, forced oncoming vehicles off the road and onto the sidewalk to avoid the defendant, and went the wrong way on a one way street. After entering not guilty pleas, upon motion of defense counsel, a psychological evaluation to determine the availability of a plea of not guilty by reason of insanity ("NGRI").

The trial court reviewed a copy of the psychologist’s report indicating a lack of any mental disability that would support a NGRI plea. At the hearing the trial court stated another hearing would be conducted after defense counsel and the prosecutor had the opportunity to review the report. Prior to that hearing, the defendant entered guilty pleas to the fleeing and OVI changes with the rest of the charges dismissed. Subsequent to the plea, but before sentencing, the defendant moved to withdraw his guilty pleas on the grounds that he had received a probable cancer diagnosis. The motion was overruled.

The defendant asserted on appeal that the guilty pleas were not valid because the NGRI evaluation was still pending and unresolved by the court. (Par. 18.).2 The record showed, however, that the trial court had received and reviewed the completed evaluation, as well as providing a copy to defense counsel prior to the pleas hearing. In addition, the court recognized that a guilty plea, without a formal withdrawal of a NGRI plea waives any argument pertaining to the insanity defense and the guilty plea contains within it an implied admission of sanity.  (Par. 20, citations omitted.) The appellate court found there was nothing in the record to show the defendant was not competent to enter a guilty plea or that he did not understand or appreciate the consequences of entering a guilty plea. As such, the guilty pleas were found to be knowingly, intelligently, and voluntarily entered.

With regard to the defendant’s request to withdraw his pleas the court recognized a presentence motion to withdraw a guilty plea should be freely and liberally granted, but there must also be a reasonable and legitimate basis for the motion. A mere change of heart regarding a decision to enter a plea, without some additional justification, is not a sufficient basis for the withdrawal of a guilty plea. (Par. 31, citations omitted.). The court noted the factors to be considered when evaluating the surrounding circumstances of the defendant’s plea include:

1) whether the defendant was represented by highly competent counsel;

2) whether the defendant was afforded a complete criminal Rule 11 hearing before entering the plea;

3) whether the trial court conducted a full and impartial hearing on the defendant's motion to withdraw the plea;

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

5) whether the motion was made within a reasonable time;

6) whether the motion set out specific reasons for the withdrawal;

7) whether the defendant understood the nature of the charges and the possible penalties; 8) whether the defendant was possibly not guilty of the charges or had a complete defense to the charges; and

9) whether the state would have been prejudiced by the withdrawal. 

(Par. 26, citations omitted). The appellate court held, based on the grounds asserted by the defendant, the trial court did not abuse its discretion by overruling the motion to withdraw the guilty pleas.

Sentencing issues.

State v. Miller, 2024-Ohio-2009 (2d. Dist.). OVI conviction was affirmed, but remanded for resentencing as a first degree misdemeanor instead of a fourth degree felony. The defendant was discovered around 2:00 a.m. slumped over the steering wheel of a vehicle stopped in a ditch on the side of a rural road. The car was not running and the keys were not located. The defendant was charged with OVI in violation of R.C. 4511.19 and physical control of the vehicle under the influence in violation of R.C. 4511.194. The defendant was disoriented with glassy, bloodshot eyes and slurred speech. The defendant refused a breath test at the scene and again at the station. After a search warrant was obtained, the defendant’s blood sample was positive for methamphetamine at a concentration exceeding the legal limit. The LEADS report showed five prior OVI convictions, enhancing the offense to a fourth degree felony. After a bench trial the defendant was found guilty of both OVI and physical control charges, which the trial court merged and sentenced the defendant on the OVI and driving under suspension offenses.

Sufficiency of the evidence.

Regarding the issue of operation, the court held the term “cause or have caused movement” in R.C 4511.01(HHH), included both present and past tense. The court noted “operation” could be proven by circumstantial evidence from the facts in the case. In this case the evidence showed the defendant was alone in the vehicle at the side of the road in the early morning hours, slumped over behind the steering wheel, and with no one else at the scene. The court found the evidence was sufficient to support the OVI conviction.

Level of offense.

The only evidence offered in support of the defendant’s prior OVI convictions was an uncertified LEADS printout. In the absence of stipulation of parties or admission by the defendant, R.C. 2945.75(B)(1) requires a certified copy of a record showing the name, date of birth, and social security number of the defendant for an offense which the BMV registrar maintains a record. In the present case the uncertified record, timely objected to by the defendant at trial, was insufficient to prove the defendant’s prior OVI convictions. Consequently, the offense defaulted to a first degree misdemeanor.

State v. Hole, 2024-Ohio-1811 (7th. Dist.). Ninety day jail sentence for furnishing alcohol to an underage person was affirmed. The defendant was also charged with sexual imposition, but acquitted of that charge due to the statutory requirement that a conviction for sexual imposition cannot be predicated solely upon the victim's testimony. R.C. 2907.06(B). The defendant argued that the jail sentence was based on the acquitted charge.

On appeal the court noted the trial court must consider the criteria of R.C. 2929.22 and the principles of R.C. 2929.21, before imposing a misdemeanor sentence, but the court is not required to state on the record its consideration of the sentencing factors. (Par. 12, citations omitted.). A sentencing judge can take into account, however, facts relating to other charges, even charges that have been dismissed or which resulted in an acquittal. (Par. 16.). In the present case the court considered the defendant’s motive for providing alcohol underage, the seriousness of the offense, and potential harm, stating:

Furnishing alcohol to a minor by definition involves a vulnerable victim, who is likely incapable of recognizing the consequences of alcohol consumption. Dangerous and irreversible consequences may follow. The concern regarding Appellant's choice of victim is compounded by Appellant's history of assuming roles of authority over children and adolescents. (Par. 17.).

OVI and federal civil rights claims

Wood v. Reynolds, Case No. 3:22-CV-351, 2024 U.S. Dist. LEXIS 83793, 2024 WL 2060813(S.D. Ohio 2024). Motion to dismiss civil rights claims against police officers for civil conspiracy, false/wrongful arrest, unlawful and search and seizure of the plaintiff's vehicle, contents, and blood, and failure to intervene was overruled. Some of the claims also included the township police department and the county sheriff’s department. Other claims raised by the plaintiff were dismissed.

This case arises out of an OVI stop. The defendant’s car was searched and towed and blood drawn at a hospital pursuant to a search warrant. The OVI charge was later dismissed after the common pleas court held lack of probable cause for the arrest. Additional facts set out in the magistrate’s report and recommendation, Wood v. Reynolds, No. 3:22-cv-351, 2023 U.S. Dist. LEXIS 144987, 2023 WL 5310094 (S.D. Ohio, 2023).

Monachino v. Vill. Of Walton Hills Police Dept., Case No. 1:24 CV 510, 2024 U.S. Dist. LEXIS 93907, 2024 WL 2724330 (N.D. Ohio 2024). Dismissal of plaintiff/driver’s civil rights claim against police for releasing him after stop without arrest for OVI. Shortly after the plaintiff was released with a warning, he was involved in a collision resulting in two deaths and conviction for aggravated vehicular homicide.

The court noted that:

The Due Process Clause of the Constitution protects individuals against unlawful governmental interference with their right to life, liberty and property. When the state limits an individual's ability to care for himself by, for example, incarceration in a prison or involuntary confinement in a mental hospital, the Constitution imposes an affirmative duty of care and protection. Foy v. City of Berea, 58 F.3d 227, 231 (6th. Cir. 1995). There is no such affirmative duty, however, absent such restraint.

Similar to the decision in Foy, “a police officer does not violate a plaintiff's constitutional rights where the officer does not restrain the plaintiff's liberty and did not prevent the plaintiff from protecting himself from the risks associated with his own intoxication.”

Although the court found the plaintiff, wo was not in custody nor incarcerated, did not have a due process violation claim against the police for being released, a collision victim may have a valid civil rights claim when an intoxicated driver is permitted by the police to continue to drive. See, e.g. Reed v. Gardner, 986 F.2d 1122 (7th Cir. 1993).

Supplemental Note: Regarding the decision Cleveland v. Oliver that the failure to conduct a five day hearing in an OVI case may be grounds for dismissal of the administrative license suspension (ALS), as discussed in the April newsletter, Judge Mascio of the Steubenville Municipal Court pointed out in State v. Leitwein 2020-Ohio-3698 (5th. Dist.) a contrary holding regarding termination of the ALS. Although the focus of the newsletter is to provide summaries of current appellate decisions, in some cases the decisions may be in conflict with a case from another appellate district.

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  1. The defendant spoke Nepali. The officer unsuccessfully attempted to use a translator application through his smart watch to assist with communication. The record did not indicate any language issue with the officer’s directions to the defendant.↩︎

  2. In this case the NGRI plea was never formally made.↩︎