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Traffic Signals — September 2024

Dear Colleagues,October 8, 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. Some of the cases involve the odor of marijuana as probable cause to detain a defendant or search a car. These cases predate the adoption of Ohio Adult Cannabis Use in November, 2023, increasing greater use of marijuana as of December 7, 2023.

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, September, 2024.

Traffic offense as reason for stop.

State v. Daniels, 2024-Ohio-3392, (1^st. Dist). Order overruling motion to suppress traffic stop and conviction for weapons under disability were affirmed. The defendant was stopped for not using a turn signal when changing lanes and driving a car with heavily tinted windows. After the car was stopped the officers observed marijuana grounds sprinkled in the car.

The officers only issued a traffic citation for improper lane change. The defendant argued the officers did not measure the degree of window tint, and therefore it was an invalid charge. The appellate court found “whether a driver could ultimately be found guilty of a window-tint violation is not determinative of whether police had reasonable suspicion to conduct a traffic stop.” (Par. 11, citing State v. Sims, 2017-Ohio-8379 (1^st. Dist.).

State v. Reeves, 2024-Ohio-4650 (5^th. Dist.). Weapons and drug convictions and order denying motion to suppress were affirmed. The defendant was stopped for driving without a rear license plate light. When he approached the car and the defendant rolled down the window, the officer smelled marijuana. The defendant refused to get out of the car and backup was required. Once removed from the car, bags with white powder and a gun were discovered in the defendant’s waistband. A subsequent search of the car revealed marijuana, psilocybin, methamphetamine, cocaine, methylenedioxymethamphetamine, fentanyl, drug paraphernalia, and $3,500 in cash.

The motion to suppress was denied after an evidentiary hearing. The court noted on appeal the failure to properly illuminate a license plate is a violation of R.C. 4513.05 and provides probable cause to initiate a traffic stop. (Par. 27, citations omitted.). Although the defendant disputed that the license plate light was inoperable, he admitted at the scene problems with the light due to a voltage regulator issue when the car was not running. (Par. 29). The appellate court found as disputed evidence, the trial court’s determination of the evidence based on the credibility of the witnesses was not error. The court further found that based on a valid traffic stop, the subsequent search of the vehicle was valid based on the smell of marijuana.¹

State v. Sugden, 2024-Ohio-4442 (9^th. Dist). Order overruling motion to suppress and OVI conviction were affirmed. The defendant was stopped around 1:30 a.m. after the officer saw the defendant travel out of her lane two times and then make an improper left hand turn. As the officer approached the driver there was a slight odor of alcohol from the car. The driver had bloodshot, glassy eyes and spoke with slurred speech. The officer performed two pre-exit tests and asked the driver to get out of the truck. The driver had difficulty, explaining she was scheduled for knee surgery that week. The HGN showed four of six clues. The officer also administered a modified Romberg test, finger to nose test, and checked the driver’s eyes for lack of convergence. Based on the officer’s observations, the driver was arrested for OVI. After a motion to suppress was overruled, the defendant entered no contest pleas to both OVI charges, driving under the influence and driving with a prohibited BAC, which were merged for sentencing.

Improper left hand turn.

The defendant did not dispute that she turned left onto the rightmost of the two southbound through lanes, instead of into the leftmost lane immediately adjacent to the center double yellow lane lines. (Par. 19). The left hand turn is governed by R.C. 4511.36(A)(2), which the court in State v. Graham, 2014-Ohio-3283 (9^th. Dist.) previously held requires the driver, when making the turn onto a two lane road, to drive into the lane closest to the centerline. The court in Sudgen declined to overrule the holding in Graham and found the defendant’s left turn into the curb lane of a two way street was in violation of R.C 4511.36(A)(2). Observing this violation, the officer had reasonable suspicion to stop the vehicle.

Reasonable, articulable suspicion to detain the defendant to conduct field sobriety tests.

The appellate court noted only a reasonable suspicion of criminal activity, not probable cause, is required to conduct field sobriety tests. (Par. 28, citations omitted.). Reasonable suspicion is based on specific and articulable facts that a person is committing a criminal act. In the present case the evidence showed the defendant had red eyes, slurred speech, and a slight odor of alcohol from the car, combined with the initial denial of consuming alcohol and the pre-exit roadside tests. Reviewing the totality of the circumstances, the appellate court found sufficient evidence that the officer possessed reasonable suspicion to detain the defendant to investigate her possible impairment.

Une of non-standardized sobriety tests.

In response to the defendant’s assertion that non-standardized tests should not be included in the probable cause determination, the appellate court held the officer’s observations of the defendant during the tests could be considered when making the determination to arrest the defendant for impaired driving. The court relied on State v. Schmitt, 101 Ohio St.3d 79, 2004-Ohio-37, which permitted the officer’s observations of the defendant during the field sobriety tests, even though the tests were not performed in substantial compliance with the NHTSA requirements. (Par. 38). Applying the decision in Schmitt, the court in State v. Washington, 2012-Ohio-1391 (9^th. Dist.), concluded that an officer’s observations of the defendant with non-standardized field sobriety tests, such as the Modified Romberg test and the finger to nose test in this case, could also be considered in the probable cause determination. (Par. 39).

Slow speed as grounds for stop.

State v. Tomlin, 2024-Ohio-4710 (2d. Dist.). Conviction for possession of cocaine and order overruling motion to suppress were affirmed. The defendant was stopped around 2:00 a.m. after passing a slow moving salt truck on the highway in a 70 mph zone. The defendant was going about 46 to 50 miles per hour when he passed the truck, but remained in the left, passing lane at the same speed. After following the defendant’s vehicle for over a mile, the officer initiated a traffic stop for traveling too slowly in the left lane, in violation of R.C. 4511.25(B). While following the defendant’s car, the officer ran a check on the plate which showed a female owner with a suspended license. Traveling from behind and due to darkness, the officer could not see into the defendant’s car. As he approached the car, however, the officer saw the driver was male. When the defendant rolled down the window the officer smelled raw marijuana from the car. Videos from both the officer’s body cam and cruiser were presented as evidence at the hearing.

The defendant explained he was travelling slowly due to sliding on the roadway. When the officer asked the defendant to get out of the car, the defendant moved his hands into his sweatshirt pocket. When he removed his hands, he kept them clenched. After a few moments to get the defendant to open his hands, a bag of cocaine was discovered which resulted in the charge in this case.

The defendant asserted that once the officer approached the car and saw the defendant was not the owner of the vehicle, the traffic stop should have terminated. The appellate court rejected this argument, noting that the defendant also had reasonable, articulable suspicion to initiate the traffic stop based on the slow-speed traffic violation. (Par. 20). R.C. 4511.25(B)(1) generally requires a slow moving vehicle to move to the right lane on a two lane roadway.²

Once a valid traffic stop is made, the driver may be detained for a period of time sufficient to issue the perform routine computer check procedures and issue a citation. (Par. 21. Citations omitted.). In the present case the defendant was unable to produce a driver’s license at the scene, which also prolonged the stop to verify the defendant’s identity and license to drive. Relying on State v. Moore, 2000-Ohio-10, the court found when the officer smelled the raw marijuana from the car, there was sufficient probable cause to search a motor vehicle, pursuant to the automobile exception to the warrant requirement. (Par. 24). Although the court noted that even with the passage of recreational marijuana in November, 2023, which was after the arrest in this case, the holding in Moore is still valid law regarding illegal possession of marijuana. (Par. 24-25, citations omitted.)

State v. Walker, 2024-Ohio-4469 (4^th. Dist.). Order overruling motion to suppress and convictions of aggravated possession of drugs, trafficking in drugs, and having a weapon while under disability were affirmed.³ The defendant initially came to the officer’s attention by slowing down on the highway to 54 MPH in a 70 MPH zone. The officer observed the defendant cross over the white fog line and later, the dotted centerline. Upon questioning by the officer after being stopped, the defendant did not have a driver’s license, could not tell the officer who either owned, or gave the defendant permission to drive the car.⁴ The defendant was removed from the car and a firearm and methamphetamine were discovered. The defendant was under a weapons disability due to a prior felony conviction.

The defendant filed a motion to suppress asserting the stop was based on racial profiling. After a hearing, the motion was overruled, and the defendant entered no contests pleas to the weapons and drug charges.⁵

The defendant asserted on appeal that the trial court did not apply the correct legal standard to evaluate the claim that the stop was racially motivated. The appellate court held that that under the Fourth Amendment, the issue was whether there was probable cause for the stop, not any subjective intention by the officer. A stop of a vehicle for a traffic violation is not unreasonable under the Fourth Amendment. (Par. 15, relying on State v. Dukes, 2017-Ohio-7204 (4^th. Dist.)). “Courts have also generally rejected racial profiling as a basis for evidence suppression when the evidence supports the reasonableness of the investigatory stop.” (Par. 16, citations omitted.).

Although the court found race was not a factor because proper justification existed for the investigatory stop, but further noted that the court will, as should all courts, condemn any law enforcement officer's stop or action based solely upon a suspect's race or ethnic heritage. (Par. 16). An unsupported assertion that police may have had some ulterior motive does not prevent the stop from being valid for Fourth Amendment purposes.

The court noted that suppression of evidence was a judicially created remedy for violation of the Fourth Amendment. Although the defendant also asserted the officer violated the defendant defendant’s Fourteenth Amendment protections by selective enforcement, the court noted on appeal that the defendant “only mentioned the Fourteenth Amendment in a conclusory sentence at the end of his motion” providing no support, analysis, or evidence at the hearing. (Par. 20, 22).⁶ Moreover, the general statement of racial profiling in the defendant’s motion to suppress did not meet the standard of Criminal Rule 47 to “state with particularity the grounds upon which it is made."

Author’s Note: Selective prosecution, which would include equal protection under the Fourteenth Amendment, is a pretrial motion to dismiss with the burden on the defendant to establish, “at least prima facie, (1) that, while others similarly situated have not generally been proceeded against because of conduct of the type forming the basis of the charge against him, he has been singled out for prosecution, and (2) that the government's discriminatory selection of him for prosecution has been invidious or in bad faith, i.e., based upon such impermissible considerations as race, religion, or the desire to prevent his exercise of constitutional rights. These two essential elements are sometimes referred to as 'intentional and purposeful discrimination.’” State v. Flynt, 63 Ohio St. 2d 132 (1980), citing United States v. Berrios, 501 F.2d 1207 (2^nd Cir, 1974).  

Although a selective prosecution claim is not a defense on the merits to the criminal charge itself, a defendant may raise it as an independent assertion that the prosecutor has brought the charge for reasons forbidden by the Constitution. Pepper Pike v. Dantzig, 2005-Ohio-3486 (8^th. Dist.).

Mistaken reason for stop still valid.

United States v. Brown, No. 23-3657, 2024 U.S. App. LEXIS 23970 (6^th. Cir. 2024). Order overruling motion to suppress and conviction for weapons and drug charges was affirmed. The defendant was stopped by the police around 1:00 a.m. for driving a car with a mismatched license plate. As the police approached the defendant’s car, The defendant told them his mother had just bought the car and had not transferred the plates. The defendant looked into the glove compartment to look for the papers but was unable to find them. While the defendant was looking for the paperwork, he was asked for his driver’s license and responded he did not have one. As he was getting out of the car, he handed a bag to his passenger. A firearm and illegal drugs were later found in the bag. While one officer was checking the bag another officer returned to the car to inform him the license plate was not improper as the car was purchased twenty days earlier.

The mismatched license plate was not illegal because R.C. 4503.12 permits a thirty day period, which had not expired, to transfer the plate after purchasing the car. The court found the officers had a reasonable basis to initiate the traffic stop because the license plate on the vehicle he was driving did not match the make and model of the car.

Regarding the duration of the stop the court noted “a traffic stop becomes unlawful if it is prolonged beyond the time reasonably required to complete the mission of the stop, relying on Rodriguez v. United States, 575 U.S. 348, 350 (2015). The court further noted that The Constitutional limitation with a traffic stop is limited in scope as well as duration and the officer must use "the least intrusive means reasonably available to verify or dispel the officer's suspicion in a short period of time."  Florida v. Royer, 460 U.S. 491 (1983). In the present case the court found the officer at the stop acted diligently, did not do anything to extend the traffic stop longer than necessary to effectuate its purpose, and it would have taken the defendant equally long to find his documents regarding the transfer of the plates.

In uphold the denial of the motion to suppress, the court distinguished State v. Chatton, 11 Ohio St. 3d 5 (1984), in which the officer stopped the car for no license plate but saw it in the back windshield as the officer approached the car. The court in Chatton held that once the officer saw the rear license plate, it that dispelled any reasonable suspicion justifying the stop or continue the officer’s inquiry with the driver to produce his driver’s license. In Brown the license plate discrepancy was not resolved until after the defendant admitted he did not have a driver’s license and was ordered out of the car.

State v. Koffel, 2024-Ohio-4519 (7^th. Dist.). Convictions for aggravated drug possession and aggravated drug trafficking and order overruling motion to suppress were affirmed. The defendant was a passenger in a car that was stopped for a traffic violation. Due to the smell of marijuana, the defendant and the driver were asked to get out of the car. A record check showed an outstanding arrest warrant for the defendant from the municipal court for domestic violence. Although the defendant claimed the warrant was no longer valid because he had plead and was convicted in the common pleas court on the same charge, the municipal court warrant was not recalled.

In affirming the denial of the motion to suppress, the appellate court stated the purpose of the exclusionary rule was to deter police misconduct that flagrantly, deliberately, or recklessly violates the Fourth Amendment. “When officers act in good-faith reliance on a warrant that is later determined to be invalid, suppressing that evidence does not serve the purpose of the exclusionary rule.” State v. Hoffman,141 Ohio St. 3d 428, 2014-Ohio-4795. In the present case the court found the police officer was objectively reasonable in relying on the arrest warrant, which was proper when issued and remained specifically labeled by the municipal court as an active warrant. (Par. 17). Moreover, even if the officer was made aware of the common pleas case, it was not reasonable for the officer, based on the defendant’s statements, to obtain information at the scene that the two cases overlapped with the same victim, incident, and time frame. (Par. 17).

Trial Issues.

1. Mistrial and double jeopardy.

State v. Hicks, 2024-Ohio-3422 (2d. Dist.). Dismissal for double jeopardy after mistrial was affirmed. The defendant was charged with four separate license suspension offenses, 1) driving under a financial responsibility suspension, 2) operating a motor vehicle without a license 3) driving a motor vehicle while under a 12-point suspension,4) and driving a motor vehicle while under suspension for operating a vehicle under the influence ("OVI") after he was stopped at a sobriety checkpoint. At the jury trial an issue arose whether a prior OVI suspension was an element of the offense or a penalty enhancement. The trial court initially held the prior OVI suspension conviction was an element of the offense. The jury was then sworn and the prosecutor presented her case, including evidence of the prior OVI conviction.

After the state rested its case and outside the presence of the jury, the court determined the prior conviction only enhanced the penalty for a subsequent offense, but did not raise the degree. Therefore, the prior conviction was not an element of the subsequent offense. (Par. 11). Because evidence of the prior conviction had already been presented to the jury and to avoid prejudicial error and remand if there was a conviction, the prosecutor moved for a mistrial. The defendant did not join in the mistrial motion. The court granted the mistrial. Subsequently, the defendant filed a motion to dismiss, stating jeopardy had attached at trial, the defendant had done nothing to occasion the mistrial, and the court did not consider a limiting instruction to the jury before declaring the mistrial.(Par. 14). Following an oral hearing, the motion to dismiss was granted.

There are two factors after a mistrial to determine if a subsequent prosecution is barred under the Double Jeopardy Clause, 1) whether jeopardy has attached and 2) if an exception applies to permit a retrial, citing Sidney v. Little, 119 Ohio App.3d 196 3d. Dist. 1997). (Par. 20). The appellate court found that jeopardy attached in this case when the jury was impaneled and sworn, citing Crist v. Bretz, 437 U.S. 28 (1978). (Par. 21).

When a mistrial has been declared without the defendant's request or consent, double jeopardy will bar a retrial unless the state can show the manifest necessity of the mistrial. A mistrial should not be ordered in a criminal case merely because some error or irregularity has occurred but is necessary only when a fair trial is no longer possible. (Par. 24, citations omitted).

In this case the issue was the state’s proof of a prior driving under a suspended license conviction that was later decided not to be an element of the offense. The state argued the necessity of a mistrial due to erroneous presentation of a prior conviction. In State v. Allen, 29 Ohio St. 3d 53 (1987), the court found introduction of a prior offense which was not an element of the offense being tried was prejudicial error that required a mistrial. (Par. 26). The court in Hicks noted that although the Allen decision cautioned about the prejudicial effect of a prior conviction to the jury, it did not make reversal of any conviction a certainty or established a manifest necessity to declare a mistrial. (Par. 36, citing Illinois v. Sommerville, 410 U.S. 458 (1973)).

In the present case the court noted thar a trial judge should take time to search for any reasonable alternatives, including possible curative instructions, before declaring a mistrial. In addition, the defendant in this case did not explicitly or implicitly consent to the mistrial. Citing the unique facts in this case, the dismissal order was affirmed.

Author’s Note: State v. Allen, held a prior OVI conviction within ten years of a new OVI offense, enhances the mandatory penalty, but the offense remains a first degree misdemeanor. R.C. 4511.19(G)(1)(b). R.C. 4511.19(A)(2) was enacted in 2004, after the decision in Allen, to create a new OVI offense when the defendant has a prior conviction within twenty years and refused to submit to a chemical test. In State v. Leasure, 2015-Ohio-5327 (4^th. Dist.), the court held a prior OVI conviction was an essential element of a prosecution under R.C. 4511.19(A)(2) which must be proved beyond a reasonable doubt. (Par. 36, citations omitted.).

Notwithstanding the decision in Leasure, caution should be exercised when a defendant is charged with both R.C. 4511.19(A)(1)(a), operating a vehicle under the influence and R.C. 4511.19(A)(2), operating a vehicle under the influence with a prior conviction within twenty years and a refusal to submit to a chemical tests because two separate “refusal” instructions may apply. Under R.C. 4511.19(A)(1)(a), a refusal finding by the jury is permissive, which may or may not be considered in deciding whether the defendant was under the influence, (OJI-CR 711.19, Sec. 9) while under R.C. 4511.19(A)(2), a refusal finding is mandatory as an element of the offense by proof beyond a reasonable doubt. (See, OJI-CR 711.19(A)(2), Sec. 10). 

2. Joinder of charges for trial.

State v. Mohammad Rahman, 2024-Ohio-4768 (5^th. Dist.). Order overruling motion to suppress and convictions for OVI, driving under OVI suspension, possession of marijuana and drug paraphernalia were affirmed. The defendant was traveling approximately 85 mph in a 50 mph zone. After the officer attempted to stop the defendant, the defendant accelerated to 100 mph but eventually slowed down and stopped. When the defendant was removed from car the officer observed bloodshot, glassy eyes, flush face, slurred speech, alcohol smell from the defendant’s breath and odor of marijuana. Field sobriety tests and the modified Romberg tests were administered due to the presence of both alcohol and marijuana. Based on the test results, erratic driving, and the defendant’s physical condition, the defendant was arrested for OVI. After the arrest the defendant became belligerent and refused to identify himself to the officer. When finally identified it was discovered that the defendant had three prior OVI convictions within the past twenty years.

Prior to the hearing on the motion to suppress, defense counsel withdrew as counsel. The defendant informed the court he was willing to proceed without counsel. Prior to the commencement of the hearing the trial court advised the defendant of his right to counsel and could continue the case to obtain new counsel. The defendant chose to go forward and executed a written waiver of counsel. Based on the evidence presented at the hearing, the motion to suppress was overruled. The defendant appeared for the jury trial again without counsel and after a lengthy discussion with the trial court, executed a waiver of counsel and proceeded with the jury trial representing himself. The jury returned a guilty verdict on all of the charges.

Although the defendant chose to represent himself, he raised an issue of ineffective assistance of counsel on appeal. The appellate court rejected this issue stating he could not assert his own ineffectiveness on appeal. (Par. 33, citation omitted.). The court noted the trial court’s extensive colloquies with the defendant about waiving his right to counsel.

Regarding the defendant’s motion to suppress, the court cited State v. Mays, 2008-Ohio-4539, that only a reasonable and articulable suspicion, not probable cause, is required for a traffic stop. (Par. 40.). Moreover, when a traffic infraction is witnessed by a police officer, the stop is constitutionally valid. (Par. 40, citing Dayton v. Erikson, 1996-Ohio-431.). The court in the present case noted that an officer’s visual observation of speed is sufficient to prove a speeding offense beyond a reasonable doubt, and therefore, would also be sufficient to create a reasonable suspicion of that offense to justify stopping the car. The court found in addition to the defendant’s reckless operation of the vehicle, failure to comply, and belligerence during the investigation, as well as a strong odor of an alcoholic beverage emanating from the defendant and his poor performance on the field sobriety tests were sufficient to arrest the defendant for an OVI offense. (Par. 45).

The defendant also raised improper joinder of charges for trial. Putting aside no objection was raised at trial, Criminal Rule 13 permits joinder for trial of two or more charges if they could have been brought in the same indictment or information. Criminal Rule 8 permits a single complaint when the offenses are of the same or similar character. Applying these rules and the interrelated factual basis for the charges, the court found that the charges were properly joined as constituting parts of a course of criminal conduct. (Par. 50). The court further noted that joinder is liberally permitted to conserve judicial resources, reduce the chance of * * * incongruous results and excessive trials, and diminish inconvenience to witnesses. (Par. 50, citations omitted.).

Circumstantial evidence.

1. Inference of impairment.

Cleveland v. Clark, 2024-Ohio-4491 (8^th. Dist.). Order overruling motion to suppress and OVI conviction were affirmed. The defendant was involved in a car collision at a four way stop intersection. The officer responded to the scene after the report of the collision. A firetruck and EMS vehicle were already at the scene due to the collision. Neighbors told the officer the defendant sped through the intersection without stopping, colliding with the other car. The officer reported the defendant threatened the officer when asked to take field sobriety tests. As a result of the threat, the defendant was placed in the police car. Once in the car the officer testified he could smell alcohol from the defendant. He also testified the defendant had glassy eyes and slurred speech. The defendant was arrested for OVI. The defendant refused any medical treatment at the scene and refused to submit to a chemical test at the police station.

Motion to suppress.

The motion to suppress was based on the officer’s lack of direct observation of the defendant’s driving. The court noted that although the general rule is that an officer may not make a warrantless arrest for a misdemeanor offense unless the act occurred in the officer's presence, an exception to this rule applies when the defendant caused a vehicle collision. (Citations omitted.). In this case the court found the witness was a veteran officer with years of prior experience interacting with impaired drivers. The officer considered the witness’ statements, including the defendant driving through the stop sign, throwing a beer can out of the car after the collision, and the location, extent, and type of damage to each car. Combined with the officer’s direct observations of the defendant’s appearance and conduct at the scene, the court found there was sufficient evidence of probable cause to arrest the defendant for an OVI offense.

Evidence for conviction.

The court noted that an officer, as well as any other witness, may testify whether a defendant appeared intoxicated. (Citations omitted.). Factors to consider include the defendant’s slurred speech, bloodshot eyes, and odor of alcohol, refusal to submit to field sobriety⁷ or chemical tests, and a combative or belligerent conduct. (Citing Solon v. Hrivnak, 2014-Ohio-3135, ¶ 18 (8th Dist.), State v. Simms, 2008-Ohio-4848, ¶ 6 (9th Dist.)).  Although there were no field sobriety test results, the court noted that field sobriety tests are not required to prove an OVI conviction. The court found sufficient evidence in the record to establish the defendant was impaired at the time of the collision.

State v. Oliver, 2024-Ohio-4542 (11^th. Dist.). Conviction for felony OVI offense and specification were affirmed. The defendant drove into a restricted parking lot of a private school around 11:00 p.m. and stopped next to the school’s security officer. There were three entrances into the parking lot with posted “no trespassing “signs. After about ten minutes, the defendant got out of his car, slightly staggering and holding himself up against the car. After the security officer told the defendant he had to leave, the defendant stumbled over to the officer, told him with slurred speech to get out of his face, and proceeded to urinate on the ground. Dispatch notified a police officer who was on his way to the school in response to an unrelated fire alarm about an intoxicated driver.

As the police officer approached he noted the defendant had watery, bloodshot eyes, and a strong odor of alcohol. The defendant was uncooperative with the police officer, refusing to get into the police car. The defendant was initially arrested for trespassing, but after further investigation, including discussions with witnesses and discovery of a cup with an alcoholic beverage in the cupholder. The police officer testified field sobriety tests were not offered due to the defendant’s continued uncooperative behavior. The defendant continued his uncooperative behavior at the police station, yelling at the officer as the BMV form for a chemical test was read to him. At the end of the process the defendant refused to submit to a breath test.

After opening statement at the jury trial, the court told the jury of the stipulations regarding the defendant’s prior OVI convictions, including a prior felony OVI conviction and five or more conviction within twenty years under R.C. 4511.19(A) or (B). The defendant was convicted of OVI offenses by R.C. 4511.19(A)(1)(a) and R.C. 4511.19(A(2), which merged for sentencing and the OVI specification under R.C. 2941.1413. Numerous evidentiary issues were raised on appeal.

Impairment by alcohol.

The defendant asserted there was no evidence of erratic driving, alleging he drank in the car while in the parking lot after the he stopped the car. The appellate court held evidence of erratic driving is not required to support a conviction for OVI as long as the state proves the operated his vehicle while impaired by alcohol. (Par. 39, citation omitted, emphasis in the original.). The court noted the evidence from which a jury could find the defendant was impaired included bloodshot, watery eyes, the smell of alcohol emanating on the defendant’s breath, the spilled alcohol on his pants, the cup of alcohol in the car, the trespass, urinating in the parking lot in front of the security officer and students, and the defendant’s behavior and mood swings. The court also noted that even if the defendant had consumed some alcohol after he stopped the car, the jury could infer from circumstantial evidence based on his behavior a short time after entering the parking lot and his initial interaction with the security guard that he was impaired prior to entering the campus.

Although field sobriety tests were not requested due to the defendant’s combative behavior, the element of being 'under the influence of alcohol' may be proven by eye-witness testimony, without recourse to field sobriety or other tests. (Par. 42, citations omitted.).

Operation of a Vehicle on a Public Roadway

The defendant also asserted a refusal to submit to a chemical test is limited under R.C. 4511.191 to a “vehicle operated a highway or any public or private property used by the public for vehicular travel or parking within this state. . .” The defendant claimed because the vehicle operation was on a private school lot, it was outside of the statute. The appellate court noted that the refusal was not for a silence suspension under the implied consent statute, but an element of the offense under R. C 4511.19(A)(2)(a), for operating a vehicle under the influence within this state with a prior conviction within twenty years and refusal to submit to the test. The appellate court did not address the apparent inconsistent language between R.C. 4511.19(A)(2)(a) and R.C. 4511.191 about the private property/public roadway, but instead found from the evidence presented the jury could infer the defendant operated the vehicle on a public roadway prior to entering the parking lot while under the influence of alcohol.

Refusal of Chemical Test

The defendant asserted that the officer did not take any extra stops to obtain a blood sample after the defendant’s refusal to submit to a chemical test. The court noted that although R.C. 4511.191(A)(5) (a) permits an officer to employ “whatever reasonable means are necessary to ensure that the person submits to a chemical test of the person's whole blood or blood serum or plasma,” the officer is not required to do so. (Par. 54). The court further found the defendant was not within the statutory exception from consenting to a chemical test by being dead, unconscious, or was in a condition rendering the person incapable of refusal. R.C. 4511.191(A)(4). Rather, the defendant answered “no” two separate times to the request for a chemical test.⁸

Prior Convictions

As noted above, the parties stipulated that the defendant had “five or more conviction within twenty years under R.C. 4511.19(A) or (B).” R.C. 2941.1413 is a penalty enhancing specification when a defendant has five or more OVI convictions within twenty years.

Effective 4/4/2023, however, a violation under R.C. 4511.19(B) (underage operation under the influence), is no longer an “equivalent” OVI offense., which would include the OVI specification. See, R.C. 4511.181. With respect to the OVI specification, the defendant asserted that it was error for the jury to base its conviction on the stipulation because the stipulation did not distinguish between an OVI under R.C. 4511.19(A) and underage conviction under R.C. 4511.19(B). The appellate court noted however, that in addition to the stipulation, a copy of the defendant’s driving record was also admitted into evidence.⁹ The driving record showed five prior OVI convictions, beginning when the defendant was thirty years old. As such, the jury could determine, if it became an issue, that none of the convictions were underage offenses. Moreover, the defendant did not request an instruction that would explain the two types of offenses or object to the instruction given by the court on this issue.

The concurring opinion raised a concern that an incorrect jury instruction was given, based on the stipulation of the prior convictions under either R.C. 4511.19(A) or (B). Because the error was based on the stipulation of the parties, with neither counsel recognizing the legislative change for “equivalent offenses” any error was invited by the defendant due to the stipulation and could not be raised on appeal.

2. Inference of risk of serious physical harm.

State v. Meyers, 2024-Ohio-4533 (12^th. Dist.). Convictions for failure to comply with an order or signal of a police officer, a felony of the third degree; OVI (refusal with a prior OVI conviction), a misdemeanor of the first degree, and failure to stop after an accident, a misdemeanor of the first degree. The defendant entered no guilty pleas, but subsequently withdrew those pleas and entered guilty pleas to the charges. The issue raised on appeal was whether the failure to comply charge was an offense of violence to support mandatory imposition of post release control.

The court held that in addition to the specifically enumerated offenses of violence in R.C. 2901.01(A)(9)(a), R.C.2901.01(A)(9)(c) includes traffic offenses “committed purposely or knowingly, and involving physical harm to persons or a risk of serious physical harm to persons." (Par. 10). The defendant in this case was indicted and convicted under R.C. 2921.331(C)(5)(a), which is a third degree felony if the trier of fact finds the operation also caused a substantial risk of serious physical harm to persons or property.” The court found the defendant’s guilty plea to the failure to comply charge included an admission that the operation of the vehicle "caused a substantial risk of serious physical harm to persons or property.” (Par. 12, citing State v. Taylor, 2011-Ohio-6796 (12^th. Dist.). The court further held that the defendant’s conduct, which included striking a parked car, failing to stop at multiple stop signs, driving up the center of a road, and driving the wrong way down a one way street, among other behavior, was sufficient to find a risk of serious physical harm to persons.

Probation/ Community Control Supervision.

1. Violation and revocation.

State v. Tolle, 2024-Ohio-4709 (2d. Dist.). Eighteen month prison sentence for community control supervision violation was affirmed. The defendant was convicted of aggravated drug possession and aggravated drug trafficking. The defendant was placed on community control supervision for three years and advised at the time of sentencing of the specific length of prison time that could be imposed for non-compliance. Ten months later the defendant was back before the trial court for failing to enroll into the ordered drug treatment program. The defendant admitted the violation, but claimed he was unable to complete the program due to medical issues. Rejecting this claim, the court found multiple violations, including the defendant had prohibited contact with his co-defendant, displayed confrontational aggression with program officials, displayed drug-seeking behavior, refused to comply with program directives, tested positive for THC, nicotine, and oxycodone (without notifying the hospital staff that he was in a drug treatment facility) after being hospitalized for an injury, and told the staff at the drug treatment facility he no longer wanted to be in the program, resulting in his discharge.

Affirming the judgment, the appellate court held that based on the violations in the record and a prison term imposed within the statutory range, the sentence was supported by clear and convincing evidence and not contrary to law. (Par. 12-13).

2. Medical marijuana use prohibited.

United States v. Lewis, No. 2:22-CR-05, 2024 U.S. LEXIS 1693326 (S.D. Ohio. 2024). Motion to modify supervised release terms to permit the defendant to use medical marijuana was overruled. The court recognized that despite state legislation, marijuana remains a Schedule I controlled substance under federal law, see 21 U.S.C. § 812. 18 U.S.C. 2583(d) provides a defendant may "not unlawfully possess a controlled substance" while on supervised release.¹⁰  In denying the motion, the court relied on United States v. Schostag, 895 F.3d 1025, 1028 (8th Cir. 2018), that under the Supremacy Clause of the United States Constitution, state medical-marijuana laws do not supersede federal laws that criminalize the possession of marijuana. See also, United States v. Cannon, 36 F.4th 496, 500 (3d Cir. 2022), finding the Controlled Substance Act that lists marijuana as a schedule I controlled substance does not contain any exceptions for medical marijuana.

3. Scheduling random drug screens.

United States v. Lindsay, No. 24-5089, 2024 U.S. App. LEXIS 23985, (6^th. Cir. 2024). A motion to modify supervised release condition from random drug screen to scheduled drug screens with a maximum number of screens was overruled. The defendant argued that the unspecified number of drug screens was an improper delegation of sentencing decisions to a parole officer. Rejecting this argument, the court noted that the drug screen condition was discretionary with the trial court. The trial court determined the contours of the condition and only directed the probation officer to implement the condition. The trial court complied with its statutory duties and Article III responsibilities by determining drug treatment is required and is permitted to give discretion to the probation officer on implementation. Relying on United States v. Carpenter, 702 F.3d 882 (6^th. Cir. 2012).

The defendant also objected to the treatment program to include alcohol when the defendant’s conviction was based on drug problems. The defendant argued the trial court should have set out decided precisely the type of substance-abuse treatment required, including whether and why alcohol-abuse treatment would be included in his program. The court noted generic substance abuse treatment was approved in Carpenter. In addition, it is not “unusual for a substance-abuse program to cover drug and alcohol treatment, even though the individual to date has shown only a proclivity for one type of abuse.” (citations omitted). The court in Lindsay approved the statement in United States v. Richards, 958 F.3d 961, 966 ( 10^th. Cir. 2020) that "[P]reventing further use of drugs and alcohol will help ensure Defendant does not trade one vice for another."

Miscellaneous.

1. Denial of untimely motion to suppress.

Willard v. Sokevitz, 20024-Ohio-4727. OVI conviction and order denying motion to suppress were affirmed. The defendant was charged with OVI on June 3, 2023. Defense counsel made an appearance on July 24, 2023. On August 8, 2023, the court set the case for a jury trial on November 15, 2023. On November 8, 2023, a week before trial, the defendant filed a motion to suppress. The motion did not address the timing issue or seek leave of court. It was denied the same day as untimely under Criminal Rule 12(D).

Although a trial court has discretion under Criminal Rule 12(D) and (H) to accept an untimely motion to suppress, in the absence of leave of court and providing a reason for the late motion, no basis in this case was provided to the trial court to exercise its discretion. Although the defendant raised the reasons for the untimely motion on appeal, the appellate court noted that additional evidence cannot be presented to the court of appeals and by not providing this information to the trial court, it could not be considered on appeal.

2. Pretrial credit of administrative license suspension.

State v. Olmstead, 2024-Ohio-4684 (5^th. Dist.). OVI conviction reversed on issue of license suspension period and remanded for resentencing. The defendant was charged with felony OVI offenses under R.C. 4511.19(A)(1)(a) and R.C. 4511.19(A)(2). The defendant refused the breath test upon arrest. Due to prior OVI convictions, the offense charged was a fourth degree felony. Defendant entered a plea of no contest to both charges, found guilty, and the court, after merging the convictions for sentencing, imposed a six year license suspension, among other sanctions, with no pretrial credit.

Raised on appeal as ineffective assistance of counsel, the court noted R.C. 4510.13(D) requires the trial court to credit any time when the defendant was subject to an administrative license suspension (ALS). Although the record was not clear if an ALS was imposed, R.C. 4511.191(B)(1) provides the suspension is automatic when the defendant refuses to submit to a chemical test. The appellate court also took judicial notice of the municipal court’s docket which showed an ALS was imposed when the defendant was initially charged in the municipal court.

This court can take judicial notice of the municipal court docket in Appellant's case, which is readily accessible from the court's website. See, e.g., In re Helfrich, 2014-Ohio-1933, ¶ 35 (5th Dist.), citing State ex rel. Everhart v. McIntosh, 115 Ohio St. 3d 195, 2007-Ohio-4798, (court can take judicial notice of judicial opinions and public records accessible from the internet); State v. Estridge, 2022-Ohio-208 (2nd Dist.) (it is a common practice for appellate courts to take judicial notice of publicly accessible online court dockets). (Par. 10).

From the municipal court’s online docket and the information contained in the PSI, the court found the ALS had been imposed when the defendant refused the chemical test and the trial court was required to apply any credit for the license suspension from the ALS until sentencing.

3. Competency hearing not required when stipulation to report and findings.

State v. Triplett-Fazzone, 2024-Ohio-4589 (10^th. Dist.). Conviction for reckless operation affirmed. The defendant was cited in a single car collision in which she sped through a parking lot, struck a tree, crossed a major road, then went over the curb on the opposite side and struck a stationary bike rack, trees, and bushes. Upon issues raised by the prosecutor, the trial court ordered a competency evaluation. The competency report was filed with the court under seal. At a hearing was scheduled by the court counsel for the parties, with the defendant present, stipulated to the findings in the report that the defendant was competent to stand trial. The court accepted the stipulation, noted the report admitted as evidence, and made a finding of competency based on the stipulation and the findings in the report. No additional evidence was presented.

The defendant asserted the trial court failed to conduct a competency hear. R.C. 2945.37(B) requires the trial court to conduct a hearing when the defendant’s competency is at issue. The appellate court in this case held that a stipulation of both counsel constitutes reliable and credible evidence of the defendant's competency, and a trial court does not err in finding a defendant competent or incompetent to stand trial without a formal hearing based on the stipulated report. (Par. 9, 13, relying on State v. Lanier, 2021Ohio-4194 (10^th Dist.).

D) Intervention in lieu of conviction – discretionary not mandatory.

State v. Owens, 2024-Ohio-3383 (5^th. Dist. ). Conviction of theft offenses and denial of intervention in lieu of conviction was affirmed. The defendant was charged with five counts of theft and one count of grand theft involving client funds as an attorney. The defendant filed a motion for intervention in lieu of conviction based on mental health issues. While the motion was pending, the defendant entered guilty pleas to the charges. The trial court denied the motion and proceeded with sentencing. On appeal, the defendant challenged the trial court’s order overruling the request for intervention in lieu of conviction.

R.C. 2951.041 sets out the requirements for intervention in lieu of conviction, which includes

1) the objective standard of eligibility, being limited to certain criminal offenses and a leading factor leading to the criminal offense was drugs or alcohol, mental illness at the time the offense was committed, or had an intellectual disability, and

2) the subjective standard that intervention would not demean the seriousness of the offense, and would substantially reduce the likelihood of any future criminal activity.

Upon successful completion of the program, which is a minimum one year, the case is dismissed. In this case the appellate court found the decision not to grant intervention was within the trial court’s discretion finding that as an attorney, the defendant’s position of trust with his clients and his leadership role in the community means that an intervention outcome would demean the seriousness of the conduct. In addition, the grounds set out by the trial court complied with R.C. 2951.041(B)

Author’s Note: Although alcohol or drug related, an OVI offense under R.C. 4511.19 or a substantially similar municipal ordinance is statutorily excluded from intervention in lieu of conviction. R.C. 2951.041(B)(2).

E) False identification of driver.

State v. Morgan, 2024-Ohio-4596 (5^th. Dist.).

Convictions for falsification and obstruction of official business were affirmed. The defendant was arrested for OVI after the police arrived to see the defendant and another woman fighting in the road next to a single, damaged vehicle. The defendant admitted that she was the driver. Based on the defendant’s admission, she was given field sobriety tests and arrested for OVI.

At the trial the defendant denied she was the driver and the other woman (the defendant’s aunt), admitted that she was driver, not the defendant. The defendant was acquitted of the OVI offense and subsequently charged with falsification and obstruction of official business. The defendant entered guilty pleas to both charges which were merged for sentencing.

Although the issues raised on appeal concerned the plea colloquy and the sentence, the issue of note is a conviction based on false statements given by the defendant to the police in an OVI offense.

F) Traffic tickets after final discharge not bar to sealing/expungment.

State v. N.C. 2024-Ohio-4739 (9^th. Dist.). Traffic tickets received after release from prison and final discharge were not, by themselves, grounds to deny a motion to seal a record of conviction. The court did not explain the specific traffic tickets, but they had been resolved prior to the motion to seal the record.

2. Upcoming Education Opportunities

• 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 30-31, February1, 2025, Winter Conference, 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.

• NJC, Drugged Driving, March 17-19, 2025, Indianapolis, Indianna. (Note: NHTSA has travel funds available for attendees.)

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

Free NJC Traffic and other related Programs Online Courses

• October 30, 2024, 1:00 p.m. (Eastern): Smith v. Arizona and the Sixth Amendment implications for expert testimony based on absent lab analysist’s statements. Register in advance for this meeting: https://us02web.zoom.us/meeting/register/tZUrde6rpjwoGNffSys64pMEG3l-tZ4oIF_p

• December 4, 2024, 3:00 p.m. (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.)

Need CLE Hours? The Ohio Judicial College has a number of free, online courses for CLE credit. Go to the Ohio Judicial College on the Supreme Court of Ohio’s website and then to OhioCourtEDU for a catalogue of available courses.