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Traffic Signals — August 2024

TRAFFIC SIGNALS NEWSLETTER

Dear Colleagues,September 4, 2024

This newsletter sets 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. While not all of the cases involve impaired driving, they raise pretrial and post-judgment issues that would apply to OVI and vehicular homicide and assault cases.

The case summaries provide recent appellate decisions regarding Ohio law as applied to factual matters as well as interpretations and application of statutes and prior case law. As a judge for thirty two years, I understand the time constraints and difficulty with keeping up with recent court decisions.

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

I. Summary of cases, August, 2024.

Validity of stop

Parma v. Coyne, 2024-Ohio-3192 (8^th. Dist.). Order overruling motion to suppress and OVI conviction were affirmed. The defendant was pulled over by an officer in response to a 911 call of a disturbance at the caller’s home. The defendant refused to leave and was “belligerent, intoxicated, and threatening to be physically aggressive” to the caller and his mother. (Par. 4, 22-26). On the way to the apartment, an officer saw a car that matched the dispatcher’s description and pulled the car over. No traffic violation was observed. As the officer encountered the defendant the officer observed the defendant’s eyes were “pretty glassy” and his speech was slurred. The defendant admitted he had been drinking. (Par. 8). During the course of the stop another officer informed the citing officer that the caller did not want to pursue charges from the incident at the apartment. Based on the citing officer’s observations of the defendant, however, the officer conducted field sobriety tests and the defendant was arrested for OVI. A motion to suppress was overruled after an evidentiary hearing and the defendant entered a no contest plea to the OVI charge.

On appeal the defendant asserted that no traffic violation was seen and after the caller notified the police he was no longer pursuing any criminal charges, the officer was not justified in detaining the defendant. The appellate court noted that it was not an OVI investigation and the defendant was pulled over solely from the 911 call that was relayed to him by dispatch. (Par. 20). The caller gave his name to the dispatcher and his phone number was identified. (Par. 22). Applying the standards of tipster reliability set out in Maumee v. Weisner, 1999-Ohio-68, the court in Coyne held the tip has sufficient indicia of reliability.

Although no citations were issued from the initial disturbance at the apartment, once the officer came in contact with the defendant, however, the officer had reasonable suspicion to engage in further investigation regarding a possible OVI. Moreover, the report that the defendant was belligerent, intoxicated, and threatening to be physically aggressive became a matter of public safety after the defendant left the apartment and began driving a vehicle. (Par. 22). The court found the caller’s tip alone was sufficient to justify the stop of the defendant’s vehicle.

State v. Farmer, 2024-Ohio- 2930 (5th. Dist.). Seatbelt conviction affirmed. The defendant was stopped for speeding, but only issued a citation for not wearing a seatbelt. Although R.C. 4513.263(D) prohibits an officer from stopping a vehicle solely for a seatbelt violation, the stop was based on the defendant’s speed, not the seatbelt. The court held the officer did not violate the statute's prohibition against viewing the interior or visually inspecting the interior of the car for the sole purpose of determining whether a violation of that nature has been or is being committed. (Par. 32). The probable cause for the stop was a moving traffic offense. A citation for speed was not required for the seatbelt offense.

United States v. Fizer, No. 23-1766, 2024 U.S. App. LEXIS 22043 (6^th. Cir. 2024). An order granting a motion to suppress was reversed. The stop of the vehicle by the police from a confidential informant tip that the defendant was drug dealing and observations by the police of frequent, short stops by the defendant. At the stop the defendant refused to follow an order to get out of the car, rolled up his window, and sped away, driving approximately eighty miles per hour through residential areas before he was stopped again.

The district court granted the motion to suppress on the basis of the validity of the initial stop and the lack of probable cause for arrest from the stop. The appellate court held “when a suspect's response to an illegal stop is itself a new, distinct crime, evidence uncovered as the product of an arrest for that crime will generally be attenuated enough from the initial unconstitutional detention to mitigate the need for exclusion.” (Citations omitted.). In arriving at this conclusion, the court found “there is no evidence that the officers' actions were calculated to generate an arrestable response in a way that could make the value of applying the exclusionary rule more apparent.” As such, the defendant’s act of fleeing from police officers was an intervening circumstance that purged any taint from the original detention.

State v. Davis, 2024-Ohio-3288 (5^th. Dist.). Weapons convictions were affirmed. The defendant was stopped after a report of a road rage incident and three firearms were found in his car. The defendant was convicted by jury trial of unlawful possession of a dangerous ordinance and improperly handling a firearm in a motor vehicle.

On appeal the defendant asserted ineffective assistance of counsel due to failure to file a motion to suppress. When raising this issue, the defendant must show 1) a basis for the motion to suppress; 2) that the motion had a reasonable probability of success; and 3) a reasonable probability that suppression of the challenged evidence would have changed the outcome at trial." (Par. 34, citations omitted.). The defendant in this case based his argument of lack of probable cause for the stop on the testimony from the trial. The appellate court noted, however, “trial testimony is quite different from testimony elicited during a suppression hearing as each has a different focus. The state was not required to elicit testimony during trial that would establish reasonable articulable suspicion to stop [the defendant] or prove an exception to the warrant requirement as these things were simply not relevant at trial.” (Par. 35).

Circumstantial evidence

1. Conviction affirmed.

State v. Terry, 2024-Ohio-2935 (2d. Dist.). OVI Conviction affirmed. An unrelated driver following the defendant called 911 after seeing erratic driving. During the call the driver saw the defendant drive off of the road into a guardrail and then back on the road hitting a U-Haul truck before stopping. The other driver remained on the phone at the scene until the officer arrived. The defendant’s car was inoperable as a result of the collision. There was a bottle of liquor in the car that the defendant claimed had been recently purchased. The defendant claimed she began drinking after the collision. The defendant claimed PTSD, entered a plea of not guilty by reason of insanity, and sought a competency evaluation. The parties stipulated to the court ordered evaluation and the court found the defendant did not meet the criteria for insanity and was competent to stand trial. A jury returned guilty verdicts on the OVI and disorderly conduct charges. The failure to control charge was tried to the court who made a guilty finding.

The defense sought by motion in limine to exclude foul language, racial slurs, and other statements the defendant made at the scene. The trial court found the statements were evidence of the defendant’s state of mind and level of impairment.

The defendant also sought to raise an issue of post traumatic brain injury. The trial court excluded the evidence on the grounds that the defendant been found sane and competent to stand trial. Notwithstanding the trial court’s ruling the defendant raised this issue in her testimony at trial. The appellate court found the prosecutor’s inquiry of the defendant’s medical records was not improper as it was a follow up question for the defendant to explain and substantiate her prior medical claim. (Par. 51).¹

The defendant asserted that because the officer at the scene stated he was a traffic crash reconstructionist, the prosecution was required to submit a written expert report in accordance with Criminal Rule 16(K). The appellate court found the officer’s testimony about the crash scene was not based upon any technical analysis or dependent upon his training as a crash reconstructionist and he did not offer an expert opinion. (Par. 46).

The defendant filed a motion for acquittal after the jury verdict on the grounds that the officer did not confiscate the bottle of liquor in the defendant’s car at the collision scene. The officer testified he noted in his report the presence of the liquor in the car but did not seize it. The court held the defendant was not charged with open container of alcohol in a motor vehicle and therefore, the bottle was not contraband or evidence of a crime charged in this case. Reviewing the Criminal Rule 29 motion for acquittal, the appellate court found there was sufficient evidence to support a finding that the defendant was under the influence at the time of the collision. The driver who was following the defendant reached the defendant’s car within moments of the collision and did not see her consuming the liquor at the scene. In addition, the defendant’s prior erratic driving occurred prior to the collision, although the defendant testified she started drinking after the collision.

State v. Boros, 2024-Ohio-3204 (7^th. Dist). Conviction after jury trial for failure to comply with an order or signal of a police officer was affirmed. The defendant was driving between 40-45 mph in a 25mph zone with the officer behind him. The defendant accelerated, crossing into oncoming traffic to pass a car and continued to accelerate. The officer activated his lights, and when the vehicle continued to accelerate, he activated his sirens. Although the road changed to a 45 mph zone, the defendant did not stop , but continued at about 62 mph. As the defendant drove onto smaller, unmarked, gravel roads, the officer terminated the pursuit. The next morning the officer received a call of a jeep/tree collision and identified the jeep as the one he had been following.

From the papers found in the jeep in the collision, the officer was able to locate the defendant’s residence which was less than a mile from the crash site. Two empty alcohol iced tea cans were found in the jeep. When the officer went to the home, the defendant attempted to run out of the back door. After a foot chase the defendant ran back into the house. With backup officers called in, the defendant was discovered hiding in the basement and arrested. On appeal after conviction by a jury, the defendant raised three issues on appeal.

The identity of the driver and vehicle.

The officer testified that he was parked when the defendant’s jeep drove past him. The roof of the jeep was down, giving the officer a clear view of the driver. Although the officer initially described the jeep as red, the jeep was both black and red. The court found the discrepancy in the officer’s report was a fact for the jury to resolve in light of the officer’s positive identification of the jeep at the crash scene. In addition to identification of the jeep, it contained papers with the defendant’s address. Other evidence included a positive identification of the defendant as the driver, a fresh cut on the defendant’s hand, and the defendant’s attempt to run from the police as evidence of consciousness of guilt. (Par. 22, citations omitted). Finally, in response to the officer’s inquiry of the defendant’s favorite beverage, the defendant responded with alcoholic iced tea, which was consistent with the empty cans found in the jeep.

Culpable mental state.

The appellate court held that although the offense contained a culpable mental state of

willfully under R.C. 2921.331(B), the penalty enhancement of “a substantial risk of serious physical harm to persons or property” under R.C. 2921.331(C)(5) did not have a specific mens rea and imposed strict liability. Relying on State v. Fairbanks, 2008-Ohio-1470, the court noted different mental states may apply to different elements of the same offense. (Par. 28). The court in Boros found:

R.C. 2921.331(C)(5)(a)(ii) is not an element that has a specified culpable mental state. Instead, the penalty enhancement is contingent upon a factual finding with respect to the result or consequence of the defendant's willful conduct. Whether the result or consequence was intended by the defendant is of no import. If the trier of fact finds beyond a reasonable doubt that a substantial risk of serious physical harm to persons or property actually resulted from the defendant's conduct, then the enhancement is established. This is purely a question of fact concerning the consequences flowing from the defendant's failure to comply. It involves no issue of intent or culpability, and no inquiry into the defendant's state of mind with respect to that element is contemplated or necessary. (Par. 28).

Operation of the vehicle caused a substantial risk of serious physical harm to persons or property.

The court in Boros held that the penalty enhancement only required a substantial risk, not actual serious physical harm to person or property. The court also noted that in the absence of direct testimony, it could be proved by circumstantial evidence and a jury could reasonably find the lack of an actual harm may be the good luck and careful driving of another motorist on the road. (Par. 30, citations omitted). Citing State v. Moore, 2023-Ohio-1904 (5^th. Dist.), the court noted “high-speed chases inherently create a substantial risk of physical harm to the driver, officers, and other motorists on the road, since high speeds increase the likelihood and severity of crashes." 

B). Conviction Reversed

State v. Tucker, 2024-Ohio-*** (1st. Dist.). Convictions for physical control of a vehicle while under the influence and refusal of a chemical test were reversed. The defendant was in the driver’s seat of a parked car when the park ranger approached her. The defendant and the passenger were either asleep or unconscious. Based on the defendant’s confused conduct, she was asked to perform field sobriety tests. The defendant exhibited zero clues on the HGN test, but did not successfully complete the remaining field sobriety tests. The defendant was arrested for OVI. At the police station she submitted and passed a breath test. Suspecting drug use, the defendant was offered, but refused a urine screen.

The defendant was charged with physical control of a vehicle while under the influence of alcohol or a drug of abuse in violation of R.C. 4511.194(B)(1) and refusal of a chemical test in violation of R.C. 4511.19(A)(2)(b) and found guilty after a bench trial. Regarding the OVI refusal conviction, the appellate court noted that refusal to submit to a chemical test is only an element of an OVI offense when there was a prior OVI refusal conviction within twenty years. The record did not show the defendant had a prior OVI conviction. Relying on State v. Hoover, 123 Ohio St. 3d 418, 2009-Ohio-4993, the count in Tucker noted, “the refusal to consent to testing is not, itself, a criminal offense." 

The court also found, and the prosecutor conceded, lack of any evidence of consumption of either alcohol or drugs of abuse. In a suspected drug-related OVI, the state must present sufficient evidence linking the defendant’s impairment to an identified drug of abuse.  (Citations omitted). An officer's suspicion that the defendant was under the influence of a drug of abuse is not enough. Rather, the state must establish a nexus between the driver's impairment and a particular drug of abuse. (Citations omitted). Reversing the physical control conviction, the court held that while there was evidence of impairment, the state failed to establish a nexus between the defendant’s condition and a particular drug of abuse. 

Lack of police video.

State v. Wright, 2024-Ohio-3142, (9^th. Dist.). An order denying motion to suppress and conviction for trafficking cocaine were affirmed, but the case remanded for findings to impose consecutive sentence with the defendant’s current, unrelated sentence for which the defendant was on post release control. While driving in front of the police car, the defendant stopped abruptly, obstructing the right of way on the road and then turned without a turn signal. The defendant was pulled over by the officer.² A backup officer arrived a few minutes later who reported the smell of marijuana from the truck.³ The defendant was removed from the truck and the vehicle was searched.

On appeal the court held that although the officer’s video camera did not record the traffic violations, the officer’s testimony was sufficient to establish proof of a valid traffic stop. In the absence of a video recording, the validity of the stop is based on the credibility of the witnesses and any other evidence. The call for backup did not delay the traffic stop beyond the time necessary to address the traffic infraction that is the purpose of the stop. (Par. 16, citations omitted).

Bowling Green v. Bailey, 2023-Ohio-1594 (6th. Dist.). Order overruling motion to suppress and OVI conviction affirmed. The defendant was seen by an officer in the early hours of March 18th. brushing up against a curb. After the officer turned on the overhead lights, the defendant pulled over with the two front tires on the sidewalk. The officer saw both empty and full beer cans in the passenger side of the car. The defendant was wearing a St. Patrick's Day themed beaded necklace that had a little mug shot glass hanging from it. Based on the defendant’s glassy eyes, slurred speech, odor of alcohol, unsteady walking, and beer cans in the car, field sobriety tests were conducted. From the tests results the defendant was arrested for OVI. Although the defendant asserted based on the recording after the stop that his speech was not slurred, the appellate court characterized it as a slow, lazy drawl that could reasonably be perceived as impaired speech. (Par. 35).

Lack of recording erratic driving.

The defendant disputed the traffic infraction that led to the stop, noting that it was not recorded. Although lack of recording may raise an issue, it is not sufficient by itself to discount the officer’s credibility. Rather, the issue with disputed facts is the credibility of the witnesses. Moreover, in this case although the officer was late in turning on his camara to capture the entire incident, the video showed the defendant’s car shaking from brushing up against the curb. (Par. 30).

Administrative License Suspension (ALS) Appeal.

Regarding the administrative license appeal the court noted the defendant had the burden of proving, by a preponderance of the evidence, that officers did not have a reasonable ground to believe that he was driving under the influence. Probable cause is a higher standard that reasonable ground. Having determined the officer had probable cause to arrest the defendant, the reasonable ground standard was also met.⁴

Prolonged stop and drug dog issues.

State v. Cantu, 2024-Ohio-3211 (2d. Dist.). An order granting motion to suppress was reversed. The defendant was stopped for fictitious license plate offense driving a Dodge with the plate registered to a Pontiac. The defendant stated she had purchased the car from her boyfriend but had not completed the transfer paperwork. The defendant provided the officer with a blank car title. The trial court found the defendant had a grace period to transfer the car and once discovered by the officer, the roadside detention should have ended.

On appeal the suppression order was reversed. The appellate court found that based on the information available to the officer at the time of the stop, the license plate was improperly registered to a different car, relying on State v. Cromes, 2006-Ohio-6924 (3d. Dist.) and State v. Pringle, 128 Ohio App.3d 749 (1998) that non-matching license plate was an adequate basis to stop the vehicle. (Par. 19).

The appellate court further held that there was probable cause to search the vehicle based on information provided to the officer before the stop that the defendant had just completed a drug purchase and a positive hit from a drug dog. The time from the initial stop to the drug dog sniff was approximately twelve and one half minutes. The court found the officer worked diligently to investigate the license plate discrepancy and gain information on the women he had pulled over, and did not appear he was purposely delaying getting the canine on the scene.

Author’s Note: R.C. 4549.08 prohibits operating a vehicle with a license plate registered to a different vehicle unless both vehicles belong to the same person and it is within a thirty day time from the purchase of the new vehicle to transfer the plate registration.

State v. Smith, 2024-Ohio-3066 (11^th. Dist.). An order overruling motion to suppress and felony drug conviction were affirmed. The defendant was stopped for going left of the center line and pulling too closely behind another vehicle. While the officer was running the defendant’s information, the officer called for the drug dog. During this time the officer saw movement in the defendant’s car from the front to the back seat and asked the defendant to get out of the car. When the drug dog arrived, the dog alerted the driver’s side door. Ultimately, Fentanyl, heroin, and methamphetamine were found in the car.

The motion to suppress was based on the delay for a drug dog sweep after the defendant was stopped for the traffic offense. The defendant asserted on appeal that defense counsel was ineffective for failing to also raise the initial traffic stop as part of the suppression motion. The appellate court rejected this argument, finding the traffic stop was reasonable because the officer possessed probable cause to believe an individual committed a traffic violation. (Par. 22, citations omitted). The defendant did not have his driver’s license with him but gave the officer his social security number. The officer testified it took longer to obtain the information when he has to look up the information instead of being provided with the driver’s license. The court found the lapsed time from the initial stop to the arrival of the drug dog of twelve minutes was not an unreasonable delay.

Evidence admissibility issues.

1. NHTSA manual.

State v. Berhe, 2024-Ohio-3135 (5^th. Dist.). Convictions for OVI and possession of marijuana (bench trial) and driving under suspended license and speeding (guilty pleas) were affirmed. The defendant was stopped for speeding. At the stop the officer smell raw marijuana. The defendant had glassy eyes and was sweating, despite a cold night. A baggie of marijuana fell out of the car when the defendant got out. The defendant listed six out of six clues on the HGN and also lack of eye convergence. The modified Romberg test was also conducted. Upon his arrest, a pill was found in the defendant’s shirt pocket that was field identified as Vicodin.

The defendant objected at trial to the NHTSA manual and pill identification chart on the grounds of hearsay. The exhibits were admitted limited purpose of showing the officer’s training and not as hearsay evidence. The appellate court found there was nothing in the record to show the trial court improperly relied on these exhibits for the truth of the matters asserted. In reaching this conclusion, the appellate court that it must presume, in reviewing a bench trial, that the trial court considered nothing but relevant and competent evidence in reaching its verdict. (Par. 11). In this case the trial court made a record specifically limiting the consideration of the exhibits.

2. LEADS information.

Willard v. Smith, 2024-Ohio-3344 (6^th. Dist.). Convictions for multiple traffic offenses were affirmed. On December 20, 2022, the defendant was charged with driving with a suspended license, unsafe vehicle, fictitious registration, and refusal to identify. The defendant was found guilty of all four charges following a bench trial. On January 15, 2023, the defendant was charged with driving with a suspended license, fictitious registration, and failure to comply with police order. The defendant was found guilty of all three charges following a bench trial.

In both incidents the officers used information from the Law Enforcement Automated Data System (LEADS), to confirm the ownership of the vehicle and the validity of both the license plate and the defendant’s driver’s license. On appeal the defendant asserted the information from LEADS was inadmissible hearsay. In both trials the defendant made a general objection to the admission of the LEADS evidence, but not specifically on hearsay grounds.⁵ Although the appellate court agreed that the information in the LEADS documents was hearsay, it was admissible under the public records exception to the hearsay rule, Evid. R. 803(8)(a). (Par. 28, citations omitted).

The appellate court noted “in this case, each police officer testified at each trial that they knew of LEADS and BMV reports, used them on each incident date in the performance of their official duties, and identified each report ‘is what it is claimed to be,’" and therefore, authenticated under Evid. R. 901(B)(1). (Par. 30). Under Evid. R. 901(A), the authentication inquiry is whether the document is what the proponent at trial claimed it to be, which occurred at each trial. (Par. 30). In affirming the convictions, the court distinguished its prior holding in State v. Pelmear, 2022-Ohio-1534 (6^th. Dist.), in which the conviction based in the information in the LEADS was reversed. (Par. 31). In Pelmear the LEADS report was not introduced into evidence, only the officer’s testimony of the information in the LEADS report. (Par. 31.).

Marijuana use and civil liability.

Stachowiak v. Starbucks Corp. 2024-Ohio-3345 (6^th. Dist.). Summary judgment in favor of defendant employer in civil action by car crash victim was affirmed. The crash was caused by an employee after leaving her employment high on marijuana. The employee had reported to work but was not able to comprehend or perform her work. After being confronted by her condition, the employee abruptly left the store. The employee started her car and drove into the front of the store, injuring two people. The plaintiffs sued Starbucks alleging negligent training and supervision, negligent operations, and breach of duty to patrons by failing to have policies in place to ensure their safety from intoxicated employees.

In affirming the summary judgment order, the court held Starbucks did not owe a duty to the public regarding the employee’s actions, including leaving in her own vehicle, under the circumstances. The court relied on Malone v. Miami Univ. 89 Ohio App.3d 537 (10^th. Dist. 1993), which held there was no duty to protect a third party from being injured by an intoxicated, off-duty employee, without encouragement or assistance from his employer, even if the employer knew that the employee was intoxicated. (Par. 20). In this case the court found Starbucks had not encouraged the employee to smoke marijuana, she had smoked it prior to her arrival, and did not assert any control over her because she never started her shift. In the absence that Starbucks exercised the requisite control over the employee, it owed no duty to the public at large to act reasonably to prevent the employee from causing injury. (Par. 23).

Lutheran Hosp. v. SEIU, Dist. 1199, Case No. 1:24 CV 208, 2024 U.S. LEXIS 140700 (N.D. Ohio 2024). Upholding arbitrator’s decision to vacate hospital employee’s discipline due to marijuana use. The collective bargaining agreement (CBA) permitted employee drug screens when there was reasonable cause to suspect that an employee may have used a prohibited substance prior to reporting for work or while at work, or that an employee's performance or behavior may be affected by his use of one or more prohibited substances.⁶

The employee was ordered to submit to a random drug screen which showed traces of marijuana metabolite. The arbitrator found that marijuana metabolite was not a prohibited substance or caused impairment. In upholding the arbitrator’s decision to vacate the employee’s discipline, the court noted there was no evidence that the employee actually possessed, consumed, or was under the influence of marijuana on the hospital premises. In addition, the court found there was no evidence to show:

1. how marijuana metabolite correlates to marijuana use,

2. how long the metabolite stays in a person's system, or what type of exposure is required for the metabolite to appear,

3. a positive test for metabolite signifies current or recent impairment or equates to a recent use (during the prohibited time frame) of marijuana,

4. someone has to reach a level of actual impairment to produce these metabolites, or

5. marijuana metabolite has any effect on a person's mental, emotional, or physical state.

Author’s Note: The court recognized, but rejected the employee’s argument that marijuana was no longer an illegal substance in Ohio with the passage of R.C. Chap. 3780. To begin with, the alleged misconduct occurred prior to the passage of the law. In addition, under R.C. 3780(A)(3) an employer retains the right to discipline an employee for marijuana use, possession, or distribution even when it is otherwise legal.

Judicial discretion and extended jail sentence.

State v. Rice, 2024-Ohio-3156 (3d. Dist.). An OVI conviction with a jail sentence in excess of minimum jail term was affirmed. The defendant was charged with OVI violations of R.C. 4511.19(A)(1)(a) and R.C. 4511.19(A)(1)(h) (Prohibited BAC) as well as a stop sign violation. The defendant entered a guilty plea to the OVI operation charge with the OVI/Bac and stop sign charges dismissed. The trial court ordered a term in jail of 365 days with 305 days suspended. The defendant appeals the sixty day jail sentence.

Due to the defendant’s two prior OVI convictions, the minimum sentence for a violation of R.C. 4511.19(A)(1)(a) is thirty days, while the minimum sentence under R.C. 4511.19(A)(1)(h) (the dismissed charge) was sixty days due to the 0.317 BAC. Upholding the sentence, the appellate court found the trial court properly considered and applied the sentencing factors in R.C. 2929.22 and 2929.22(B). In view of the defendant’s prior criminal record and the high BAC, the trial court did not abuse its discretion in imposing a sentence higher than the statutory minimum.

State v. Batchelor, 2024-Ohio-3232 (12^th. Dist.). Consecutive sentences of 240 days, with 45 days suspended, for multiple misdemeanor offenses affirmed. The charges included obstruction of official business and refusal to identify himself to the police from multiple incidents over a three month period. During one incident involving a passenger seatbelt violation, the incident lasted fifty four minutes due to the defendant’s refusal to provide his name and making a 911call while with the police. Reviewing the nature of the defendant’s repeated conduct, the purpose of misdemeanor sentencing the under R.C. 2929.21(A), and the sentencing factors under R.C. 2929.22(B), the court found the trial court did not abuse its discretion by imposing consecutive sentences. Although the appellate court noted it is a good practice for the trial court to affirmatively state on the record that the statutory factors were considered, "[a] trial court is not required to make consecutive sentence findings under R.C. 2929.14(C)(2) prior to ordering consecutive sentences for jail terms imposed for misdemeanor offenses.” (Par. 11, quoting State v. Fluhart, 2021-Ohio-2153 (12^th. Dist.).

Community Control Supervision Issues.

State v. Braucher, 2024-Ohio-2994, (5^th. Dist.). Community control supervision violation and imposition of incarceration affirmed. Upon conviction for drug offense the defendant was placed on thirty months probation with twelve months suspended prison sentence. Conditions included no alcohol or drugs of abuse, complete a substance abuse and mental health assessment, and follow all treatment recommendations. A violation occurred on May 30, 2023, testing positive for THC, and probation continued. The present violations are:

• Testing positive for alcohol and THC (July 13, 2023)

• Refusal to comply with drug screen (August 13, 2023)

• Refusal to go with officers after arrest (August 13, 2023)

• Diluting urine sample during drug screen (in jail after arrest)

• Refusal to comply with booking process (August 13-17, 2023)

• Refusal to pay fines and court costs.

The defendant was found guilty of all except the failure to pay fines and court costs and the suspended prison sentence was imposed.

Relying on State v. Ohly, 2023-Ohio-2353 (6^th. Dist), the court in Braucher noted, “The privilege of probation rests upon the probationer's compliance with the probation conditions and any violation of those conditions may properly be used to revoke the privilege.” (Par. 27, Citations omitted.) The court further noted a community control revocation hearing is not a criminal trial, the state need only present "substantial" proof that a violation, not proof beyond a reasonable doubt. (Par. 27, citations omitted.)  Further, community control hearings are not subject to the rules of evidence. Evid.R. 101(C)(3). (Par. 30, citation omitted.)

Although for a fifth degree felony conviction that is not an offense of violence, the period of incarceration is limited to ninety days as a technical violation unless the violation shows the defendant’s refusal to participate in the community control sanction and demonstrates to the court that the defendant has abandoned the objects of the community control sanction or condition. R.C. 2929.15 (B)(1)(c)(i) & (E) (Par. 31). The appellate court found, based on the defendant’s conduct, the violation was non-technical and upheld the eleven month sentence.

Author’s Note. The distinction between technical and non-technical probation violations is limited to fourth and fifth degree felony offenses and does not apply to misdemeanor offenses.

Procedural issues.

1. Plea colloquy and advisement of penalties.

State v. Hutsenpiller, 2024-Ohio-3069 (11^th. Dist.). Convictions for aggravated vehicular assault, OVI, and driving under OVI suspension were reversed due to lack of complete advisement of penalties at the time of the plea. The plea colloquy was governed by Criminal Rule 11(C)(2) which requires the court to inform the defendant of the maximum penalty. In this case as the trial court was explaining the penalties, the prosecutor was assisting clarifying at the court’s request, the penalties. The appellate court found that the dialogue between the court and prosecutor did not comply with Criminal Rule 11 as it was not directed to the defendant or that the defendant understood the penalties involved. (Par. 14). The appellate court also found the minimum and maximum incarceration terms were not properly explained.

Author’s Note: Neither Criminal Rule 11(D) for serious misdemeanor offenses nor Criminal Rule 11(E) for petty misdemeanor offenses require the court to explain to the defendant the maximum penalties when a guilty or no contest plea is entered. It is the better practice, however, to inform a defendant of the possible penalties not only to ensure the plea is knowingly, voluntarily, and intelligently made, but also to avoid subsequent motions to withdraw the plea.

B) Motion for leave to file motion to suppress.

State v. Walters, 2024-Ohio-****(7^th. Dist.). An order granting the defendant’s motion for leave to file motion to suppress and motion in limine was affirmed. The motions for leave were filed about four months after the defendant’s OVI arrest. Both Criminal Rule 12(D) and Traffic Rule 11(C) require motion to suppress to be “made within thirty five days after arraignment or seven days before trial, whichever is earlier. The court in the interest of justice may extend the time for making pretrial motions.” The appellate court noted that while a motion to extend the filing time for a pretrial motion should be filed before the expiration of the thirty five day time period, both Criminal Rule 12(H) and Traffic Rule 11(F) permits a court grant relief from a waiver of any defenses or objections “for good cause.”

In the present case the defendant’s motions were not timely filed, but the delay was due to pretrial negotiations with the prosecutor and other scheduling demands on the defense counsel. The prosecution objected to the motions for leave, but did not set out any specific objections. The court also noted the defendant filed the motions for leave fifteen days after receipt of the prosecutor’s final plea offer, that the trial had not yet been scheduled, and included defense counsel’s other scheduled trials. Upon review of the record the appellate court found the trial court did not abuse its discretion by permitting the untimely motions.

3. Nunc pro tunc entry to correct clerical error.

State v. Ober, 2024-Ohio-3063 (11^th. Dist.). OVI and marked lanes convictions were affirmed but remanded to correct clerical error. Although the defendant raised arguments in the court of appeals on the merits of both the motion to suppress and the guilty verdict from the bench trial, the defendant failed to file a transcript of the proceedings, effective precluding meaningful appellate review.

The trial court’s judgment entry, however, inadvertently listed the arraignment date as the date of offense. The appellate court noted a clerical error is a mistake or omission, mechanical in nature and apparent on the record, which does not involve a legal decision or judgment.(Par. 34, citations omitted). The proper remedy is a nunc pro tunc  entry to correct mistakes in judgments, orders, and other parts of the record so the record speaks the truth. (Par. 35, citations omitted).

2. Upcoming Education Opportunities

• September 19-20, 2024, Annual Meeting of the Ohio Judicial Conference, Easton, Ohio. Registration now open.

• September 26-29, 2024, National Interdisciplinary Cannabis Symposium with the American Judges Association, New York Law School, Tribeca, New York. Information at www.nationalinterdisciplinarycannabissymposium.com

• November 18-20, 2024, National Alliance to Stop Impaired Driving (NASID) Conference. Location :  Renaissance Arlington Capital View, 2800 South Potomac Avenue, Arlington, VA 22202. More information and registration at https://www.responsibility.org/

• November 21, 2024, Lean Forward Veterans Summit, Villa Milano Banquet & Conference Center, 1630 Schrock Road, Columbus, Ohio 43229. (Free, in-person event)

• January 29-31, 2025, Summer meeting, Association of Municipal and County Court Judges of Ohio, Embassy Suites, Dublin, Ohio.

2025 conferences to think about as annual budgets are prepared.

• March 9-11, 2025, Lifesavers conference, Long Beach California.

• RISE25 Conference, May 28-31, 2025, Kissimmee, Florida.

Free NJC Traffic and other related Programs Online Courses

• September 12, 2024, at 1-2:30 PM  (Eastern) FREE CLE Webinar (1 CLE credit hour). “But It’s Just Weed! Understanding the Effects of Cannabis Use on Justice-Involved Adults and Adolescents.” Dr. Kara Marciani and Hon. Kate Huffman. Register here: https://www.americanbar.org/events-cle/mtg/web/444312638/

• September 24, 2024, 2:00 p.m. (EDT), The Effects & Detection of Nitrous Oxide Use in Drivers (1.0 Hour). Click to Register - September 2024: Effects & Detection of Nitrous Oxide Use in Drivers⁷

• December 4, 2024, 3 PM (Eastern): Impaired Driving in 2024: Where Are We? (Hon. Neil Axel)  Register here:  Impaired Driving 2024: What’s New?

Other resources.

• Oral Fluid Roadside Screening – A Tool for Law Enforcement  National Alliance to Stop Impaired Driving (NASID), (On-Line video).

• Judges’ Guide to Mental Health Diversion, A Judges’ Guide to Mental Health Diversion, December 2023, National Center for State Courts, (written materials from past course.)