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Traffic Signals — October 2024

TRAFFIC SIGNALS NEWSLETTER

Dear Colleagues,November 6, 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, October, 2024.

Detaining driver after traffic stop

State v. Dunlap, 2024-Ohio-4821. Appellate court judgment reversed and trial court order overruling motion to suppress was reinstated.¹ The officer was running random license plates when the registered owner of a car showed the vehicle owner had a suspended license. The car was stopped on suspicion it was being driven by someone with a suspended license. As the officer approached the car he discovered the driver was an African American male and the vehicle owner was a white female. Upon identifying the driver, it was discovered he had a suspended license and active arrest warrant. The driver was asked to get out of the car. A search of the vehicle located a firearm in the front passenger-side door and a loaded magazine on the floor of the back seat.

Both the driver and the passenger/vehicle owner were charged with improperly handling firearms in a motor vehicle. Motion to suppress were filed on the ground of unreasonably prolonged stop after the officer discovered the vehicle owner was not the driver.

The Court found the officer had a reasonable suspicion to stop the vehicle after running a vehicle's license plate and learning that the registered owner has a revoked driver's license. (Par. 16, relying on  Kansas v. Glover, 589 U.S. 376, 380, (2020)). Once a valid stop was made, the officer was permitted to approach the driver to determine if the driver was licensed to drive. During the traffic stop, a driver may be detained for a reasonable period of time for the officer to verify the driver has a valid license, insurance, no outstanding warrants, and valid registration.

Rodriguez v. United States, 575 U.S. 348 (2015). The court found once a lawful stop is initiated,

the officer may make ordinary inquiries incident to the stop, including checking the driver's license status. 

In State v. Chatton, 11 Ohio St.3d 59 (1984), the Court reversed a conviction for carrying a concealed weapon when the car was initially stopped for no license plate. As the officer approached the car, he saw the license tag in the back seat window. The Court in Chatton held

when an officer stops a motor vehicle for lack of a license plate, but observes a temporary tag in the rear windshield as he approaches the car, the driver of the vehicle may not be detained further to determine the validity of his driver's license absent some specific and articulable facts that the detention was reasonable.

The Court in Dunlap distinguished its prior holding in Chatton, stating the initial reason for the stop in Chatton involved the vehicle registration. Once the officer saw the temporary tag, the entire mission of the stop—confirming that the car was registered—was completed. (Par. 27).

Dunlap involved whether the driver had a suspended license and the officer’s mission was not completed until he ascertained whether the driver of the vehicle had a valid license. (Par. 28).²

The dissent asserted although the initial stop was valid, once the officer determined the vehicle owner was not driving, the officer no longer had reasonable suspicion that the vehicle owner had committed a crime. In this case after the officer initiated the stop, he received information that dispelled the reasonable suspicion for the stop, and therefore, absent any other suspicion of some other offense, was not justified in continuing to detain the driver of the vehicle.

State v. Justice, 2024-Ohio-4877 (5^th. Dist.). An order overruling motion to suppress and convictions for OVI, driving under financial responsibility suspension, and taillight violation were affirmed. The defendant was initially stopped for driving without a license plate. As the officer approached the car, he saw a temporary tag in the rear window but had difficulty reading it due to the car’s dark tinted windows. The officer asked for the defendant’s driver’s license and after running the license, it came back as suspended. During this time the officer noticed the smell of alcohol and numerous beer cans in the defendant’s car.

The defendant asserted that once the officer saw the temporary tag in the back window, the officer no longer had any reasonable suspicion of criminal activity to detain the defendant. The appellate court held, however, that although a temporary tag could be placed in the rear window, R.C. 4503.21(A)(3) requires the tag to be in plain view. In this case, due to the heavily tinted window, the license tag was not in plain view as the officer could not see it until he walked up to the car and shined his light on the window. Thus, the officer did not lose justification for the stop and a brief delay because the license tag was not properly displayed.

Traffic Stop – following too closely

State v. Thompkins, 2024-Ohio-4927 (4^th. Dist.). Conviction for aggravated drug trafficking and order overruling motion to suppress were affirmed. The defendant was stopped by the officer for following too closely behind a motorcycle. At the stop the defendant could not produce a driver’s license and gave his brother’s name to the officer. While the officer was trying to determine the defendant’s identity, he smelled raw marijuana from the car. The subsequent search produced multiple bags of marijuana and six pounds of methamphetamines.

The defendant challenged the traffic stop, asserting that the “car length rule,” being the distance between the two vehicles, was not sufficient to justify the stop. R.C. 4511.34(A) prohibits a vehicle from following behind another vehicle more closely than is reasonable and prudent, having due regard for the speed of the vehicle in front, the traffic, and the condition of the highway. The court noted the purpose of this law is to avoid rear end collisions. (Par. 44, citations omitted.).

In the present case the defendant’s vehicle, as shown by the officer’s dash cam, was approximately 2-3 car lengths behind the motorcycle. The officer testified both vehicles were travelling about sixty miles per hour. The dash cam showed a one second lapse from when the motorcycle entered the camara frame until when the defendant’s car entered the camera frame. The defendant was about two to three car lengths behind the motorcycle. The officer testified, based on his training, the general rule is one car length for every ten miles of speed.” (Par. 9, 48). It was also noted that motorcycles weighed less than other vehicles and "have a large caliber braking system so they can slow down much faster than a larger vehicle." (Par. 48.).

The appellate court found there was an inadequate car length separation based on the officer’s testimony and video, establishing the defendant was driving too closely to the motorcycle in an unreasonable manner. As such, the officer had reasonable suspicion of a traffic violation to initiate a traffic stop. The court noted its decision was consistent with the decision in State v. Johnson, 2023-Ohio2979 (6^th. Dist.). (16 foot rental truck traveling 68 miles per hour fifty feet behind a semi-trailer, was unreasonably too close.)

The court in Thompkins noted that although the court in State v. Bui, 2021-Ohio-362 (6^th. Dist.), found the traffic stop for travelling too closely did not create a reasonable suspicion, the basis for the stop in Bui was based solely on the officer’s opinion, without additional evidence about the officer’s training, road conditions, or any other evidence to show the defendant’s vehicle was closer than was reasonable and prudent, as required by R.C. 4511.34(A). (Par. 51). Similarly, in State v. Hampton, 2022-Ohio-1380 (1^st. Dist.), the appellate court affirmed the granting of a motion to suppress because the stop was based only on the distance between the two vehicles without any evidence of the distance between the vehicles or that it was not reasonable or prudent. The record in Thompkins showed not only the distance between the vehicles, but from other evidence, including speed, the distance not reasonable or prudent under the standard in R.C. 4511.34(A).

Trial court’s explanations to the defendant.

1. Discretion of court to approve plea and accept or reject proposed sentence.

State v. Summers, 2024-Ohio-5200 (5^th. Dist.). Convictions for felony OVI and repeat offender specification were affirmed. The defendant was observed by an off duty police officer crossing over the yellow line into the oncoming traffic lane. The off duty officer attempted to pull the defendant over, but in doing so, she went past the fog line and curb partially into a ditch. Other officers were called in. The defendant’s breath smelled of alcohol and she had bloodshot and glassy eyes and slurred speech. There was also an empty chardonnay bottle near the driver. The driver refused all field sobriety tests and chemical tests. A search warrant was obtained for a blood sample.

After a motion to suppress was overruled, the defendant entered a no contest plea to the two felony OVI charges, which were merged for sentencing, and the repeat offender specification under R.C. 2941.1413. The prosecutor offered a recommended sentence to the defendant if she plead guilty to avoid an appeal on the suppression issues. The defendant rejected the offer and entered a no contest plea with the sentence to be determined by the judge.

Unhappy with the sentence imposed, the defendant raised on appeal an issue of ineffective assistance of counsel asserting she declined the prosecutor’s offer upon advice of her defense counsel.

On appeal the court noted the trial judge was not actively involved in the plea negotiations other than a discussion about concurrent sentence with an unrelated felony conviction in a different court. The judge also told the defendant there was no sentencing agreement and made no representation to the defendant on the sentence if found guilty. (Par. 11). In Missouri v. Frye, 566 U.S. 134 9(2012), regarding the failure to communicate a plea offer to the defendant by counsel, the Court recognized the trial court’s discretion whether to approve the plea agreement. (Par. 23). See also, Lafler v. Cooper, 566 U.S. 156, 164, (2012).  

A prosecutor’s recommended sentence is not a promise that the judge will accept that sentence. “It is well settled that the terms of a plea agreement do not bind the discretion of the trial court. . . .[F]inal final judgment on acceptance of a plea agreement and sentencing rests with the discretion of the trial court.” (Par. 34, citations omitted.). In the present case the court did not state it would follow the prosecutor’s recommend sentence and maintained his independence on this issue. Although part of the plea agreement was that the prosecutor would not oppose a motion for judicial release after the mandatory incarceration period lapsed, the court told the defendant a critical factor with a motion for judicial release would be the institutional summary report to determine if the defendant was taking full advantage of the programming at the institution and not causing any problems, rather than the prosecutor’s lack of objection.

From the record, the court found the defendant’s assertion of a less severe sentence by accepting the prosecutor’s offer was merely speculation as there was no evidence that the trial court would accept the recommended sentence.

2. Right to counsel

State v. Arcuri, 2024-Ohio-4825 (9^th. Dist.). Conviction for driving under OVI suspension was reversed. The defendant was cited for driving under an OVI suspension and driving outside of the marked lanes. The defendant represented himself and found guilty of both charges after a bench trial. Subsequent to the trial and prior to sentencing, the defendant retained counsel who filed a motion to vacate the conviction on the grounds the defendant was driving within the scope of limited driving privileges.

Although the appellate court showed the lengths to which the trial court went to explain to the defendant the danger of self-representation with a charge that has a potential jail sentence, the court found the trial court did not make a sufficient inquiry of the defendant’s level of education and sophistication. The appellate court specifically noted the defendant’s possible defense in light of the assertion that he was within the scope of limited driving privileges from a different court. (Par. 13). The court also pointed out that in addition to explaining the dangers and disadvantages of self-representation, the trial court should also advise the defendant of possible defenses to the charge and applicable mitigating circumstances. (Par. 8, Citations omitted.).

The appellate court acknowledged that the defendant was informed of his right to counsel, including appointed counsel, at the defendant’s initial appearance, but the "the purpose of an arraignment is to inform the accused of the charges made against him and to allow him to offer an answer to those charges” (Par. 14. Citations omitted.). Information provided to a defendant at an initial appearance was not sufficient for the defendant to enter a knowing, intelligent, and voluntary waiver of his right to counsel.

3. Effect of guilty plea.

Cleveland v. Greene, 2024-Ohio-4899 (8^th. Dist.). Conviction for being in physical control under the influence of alcohol was reversed. The defendant was involved in a three car collision and initially charged with OVI under R.C. 4511.19. The charge was later amended as part of a plea agreement to physical control, with the remaining traffic charges dismissed. The defendant entered a guilty plea and was found guilty of the amended charge.

The court on appeal found the defendant was not advised of the effect of a guilty plea when it was entered by the defendant. Although a plea to a misdemeanor charge does not requires a lengthy inquiry with the defendant by the trial court, Criminal rule 11(B) requires the defendant to be advised of “the effect of the plea” either orally or in writing before accepting the plea. State v. Jones, 2007-Ohio-6093 (Par. 6). Advising the defendant of the maximum penalty, waiver of jury trial and other rights in not sufficient. Instead, the trial court must explain the effects of the plea so the defendant has a full understanding. The court in Greene explained, “the focus in reviewing pleas is not on whether the trial judge used the precise verbiage of the rule, but on whether the dialogue demonstrates that the defendant understood the consequences of his plea.” (Par. 6, relying on State v. Dangler, 2020-Ohio-2765).

In the Greene case the court noted the defendant was not advised of the effect of a guilty plea as a complete admission of guilt and the factual basis for the plea was not set out on the record. (Par. 10.).³ Although the appellate court recognized the high volume of cases in municipal courts and the time constraints and challenges faced by judges, Criminal Rule 11establishes minimum requirements for the trial court.

Search Warrant procedure.

State v. Nevels, 2024-Ohio-4964 (3d. Dist.). Dismissal of OVI charge was reversed. The defendant was indicted on two counts of felony OVI (impaired operation and specified concentration of alcohol in his blood) and identify fraud. The blood sample was obtained pursuant to a search warrant after the defendant’s refusal. After a hearing on the defendant’s motion to suppress, the motion was overruled for lack of any constitutional violations. The OVI charge based on the blood sample , however, was dismissed and the evidence of the blood results were held inadmissible for the remaining OVI charge for failure to comply with the search warrant procedures in Criminal Rule 41. The prosecutor appealed the dismissal.

Dismissal by court.

Criminal Rule 48(B) permits a court to dismiss a case over the objection of the prosecutor in the interest of justice, setting out the findings of fact and reasons for the dismissal. Because criminal rule 48(B) provides the prosecutor the right to object, a dismissal may not properly be ordered without adequate notice and an opportunity to be heard by the prosecution. (Par. 17-19, citations omitted). In this case the court held that while the trial court articulated findings of fact and the reasons for the dismissal, because the prosecutor was not provided an adequate opportunity to object or present an argument in opposition, the order of dismissal was reversed. (Par. 20).

Search warrant procedure

There were three concerns about the search warrant, 1) the warrant was executed at night without nighttime provision, 2) the officer did not make a prompt return of the warrant and inventory, and 3) the warrant had numerous mistakes that the issuing judge hand corrected before the warrant was issued. Although the violations were not constitutional, the trial court found dismissal of the charge and exclusion of the blood results necessary to uphold the integrity of the requirements of the Criminal Rules. (Par. 11).

1. Compliance with Criminal Rule 41.

The search warrant was executed at 4:38 a.m. The warrant did not provide for non-daytime execution as required by Crim. R. 41(C)(2). Similarly, Crim. R. 41 (D)(1) requires the officer to promptly file the inventory with the court. Although the appellate court agreed there was noncompliance with the warrant procedure, there was no material prejudice to the defendant. Moreover, as a blood draw in an OVI case, there was a time constraint to execute the warrant. R.C. 4511.19(D).

2. Clerical mistakes in the warrant.

The officer submitted an affidavit and warrant from a prepared template that had included incorrect identification information for a prior search warrant. The issuing judge noticed and crossed out the incorrect identification information and made hand corrections before issuing the warrant. The trial court found the issuing judge became a scrivener and advocate for an improperly prepared warrant by making it possible for the police to execute the warrant within the three hour time limit without resubmitting a corrected warrant. (Par. 11). On appeal the court noted a judge is not prohibited from making corrections on a search warrant. (Par. 38).

Application of exclusionary rule.

The exclusionary rule is limited to fundamental violations of Criminal Rule 41which would renders the search unconstitutional under traditional Fourth Amendment standards. (Par. 36, relying on United States v. Vasser, 648 F.2d 507 (9th Cir. 1980)). The trial court ordered the dismissal and exclusion of evidence to uphold the integrity of compliance with Criminal Rule 41. The exclusionary rule, however, is inapplicable when a Crim. R. 41 violation is not of a constitutional nature. (Par. 36, relying on State v. Campbell, 2022-Ohio-3626). In the present case the violations of Criminal Rule 41 were not fundamental and the dismissal of the OVI charge and exclusion of the blood sample test results were reversed.

Urine sample storage procedure.

State v. Weaver, 2024-Ohio-5028 (2d. Dist.). An order granting motion to suppress was reversed. The defendant was charged with operation of a vehicle under the influence and with a prohibited marijuana level, driving under a suspended license, and crossing over marked lanes. The defendant was stopped after leaving the airport going the wrong way on a one way street. The defendant made a U-turn in front of the officer and proceeded to accelerate over the posted speed limit. The defendant entered a not guilty plea and filed a motion to suppress. After the hearing, the trial court granted the motion to suppress on the grounds that 1) the officer lacked probable cause to arrest, and 2) the urine specimen container had not been properly sealed in accordance with Ohio Adm.Code 3701-53-06(F).

Probable cause for arrest.

The validity of the traffic stop was not in dispute. The officer who stopped the defendant was on duty at the time. He testified that he was a standardized field sobriety test instructor, completed ARIDE (Advanced Roadside Impaired Driving Enforcement), and was certified in 2015 as a drug recognition expert (DRE) in the State of Ohio. As the officer approach, the defendant lit a cigarette, which the officer testified is often done to mask other odors. The officer testified the defendant’s eyes were glossy and his eyelids were droopy. The defendant did not have a driver’s license or proof of insurance with him. After running the defendant’s social security number, the officer discovered multiple license suspensions. The defendant was asked to get out of the car and go with the officer. Once in the officer’s car, the officer could smell marijuana from the defendant. The defendant told the officer he had smoke about six hours earlier.

The officer conducted both nonstandard (partial recitation of the alphabet and counting backwards) and standard field sobriety tests. The defendant did not perform the nonstandard field sobriety tests well, but the officer found no clues from the HGN test or vertical nystagmus. The officer also conducted the lack of convergence test, indicating neither eye converged in response to the stimulus. The defendant showed five out of nine clues for the walk and turn test and two out of four clues for the one legged stand.

The trial court held the officer did not have a reasonable, articulable suspicion to conduct the field sobriety tests. The appellate court noted reasonable-suspicion standard is obviously less demanding than that for probable cause and is considerably less than proof of wrongdoing by a preponderance of the evidence. (Par. 36, citations omitted.). In this case the trial court found there was no evidence of slurred speech, trouble getting out of the car, or other impairment indicators. The appellate court held that reasonable, articulable suspicion is determined by evaluating the totality of the circumstances, which must be viewed "through the eyes of the reasonable and prudent police officer on the scene who must react to events as they unfold." (Par. 36, quoting State v. Gladman, 2014-Ohio-2554 (2d. Dist.) with other citations omitted.). From the evidence in the record and the totality of the circumstances, including the smell of marijuana, the appellate court reversed the trial court, finding there was sufficient reasonable, articulable suspicion that the defendant was driving while under the influence of a drug and/or alcohol to justify the administration of the field sobriety tests.

The urine specimen container had not been properly sealed.

The trial court found the urine specimen container had not been properly sealed in accordance with Ohio Adm.Code 3701-53-06(F).⁴ This rule requires the urine sample “to be sealed in a manner such that tampering can be detected and have a label” setting out identification information.

In the present case the record shows the urine sample seal was not on the bottle when it was delivered to the lab for testing. The appellate court, based on the evidence in the record, set out the chain of custody, indicating each person who handled the bag that contained the bottled urine sample. (Par. 50). The appellate court found there was “no indication that the sealed manila envelope had been opened, damaged, or tampered with, which would have allowed the test tube-like container inside the sealed envelope to be opened, damaged, or tampered with. (Par. 51). Nor was there any indication of tampering was apparent during the transportation of the urine specimen to the laboratory.

"The purpose of the sealing requirements described in Ohio Adm.Code 3701-53-06(F) is to ensure that the blood [or urine] specimen is the same specimen that was placed in its container by the person who collected it from the defendant, and [that] it is in the same condition as when it was put there." State v. Roberts, 2009-Ohio-1799 (1st Dist.). This allows for an outer package containing the sample to be sufficiently sealed in a manner such that tampering can be detected. (Par. 52). A change was made to Ohio Adm.Code 3701-53-06(F) from requiring the urine sample to be "sealed with a gummed tape or sticker." To the current language of “to be sealed in a manner such that tampering can be detected.” The appellate court noted the amendment to the rule permitted more flexibility in how a urine specimen may be sealed. (Par. 52). The appellate court held there was at least substantial compliance with Ohio Adm.Code 3701-53-06(F) and no evidence of tampering, Therefore, the urine sample should not be excluded for lack of compliance.⁵

Sovereign citizen issues

State v. Brown, 2024-Ohio-4808 (2d. Dist.). Convictions for driving without a license and speeding were affirmed. Although there were no significant evidentiary issues raised in this case, the appellate court addressed the defendant’s claim as being exempt from having a driver’s license as an “unfranchised common law free man.” The court found it was simply a different name for a sovereign citizen. Relying on its prior decision in State v. Few, 2015-Ohio-2292, the court found arguments of exemption from laws based on admiralty, the yellow fringe on the United States flag, and the capitalization of a person’s name were frivolous, meritless, and worthy of little discussion. (Par. 14, citing DuBose v. Kasich, 2013 U.S. Dist. LEXIS 6086, 2013 WL 164506, (S.D. Ohio Jan. 15, 2013 and Furr v. Robinson, 2023-Ohio-481.

While courts are faced with similar arguments from sovereign citizens from time to time, this case and the cases cited herein are authority for courts to deal with similar issues in a summary manner.

Mistrial – No double jeopardy.

State v. Wilson, 2024-Ohio-4983 (1^st. Dist.) An order overruling the defendant’s motion to dismiss on double jeopardy grounds was affirmed. The defendant was charged with operating a vehicle under the influence (OVI), an additional OVI charge with refusal to submit with a chemical test and a prior OVI conviction, and three related minor misdemeanor traffic offenses.

After the jury trial commenced on the OVI charges, the defendant objected to information on the officer’s body worn camera which also displayed the defendant’s personal information and criminal record. The court recessed the trial to permit the prosecutor to obtain a redacted version of the video. When the prosecutor explained the information on the video could not be redacted, the court declared a mistrial.

The defendant filed a motion to dismiss the charges on double jeopardy grounds since the jury had been impaneled and sworn when the mistrial was declared. The trial court found the unredacted information was not prosecutorial misconduct, as the prosecutor did not deliberately attempt to introduce improper evidence, but rather, it was contained on the video he received. The court further held that the video with the objectionable information had been in defense counsel’s possession for weeks and the defendant had the obligation to raise the issue prior to trial. The defendant tool a direct appeal from the order overruling the motion to dismiss.

The issue before the court of appeals was any consent by the defendant to the mistrial order. When a mistrial is declared with the defendant’s consent, the defendant waives any double jeopardy claim unless the prosecutor or judge intentionally provoked the defendant into requesting a mistrial. (Par. 14, relying on State v. Mengitsu, 2003-Ohio-1452 (10^th. Dist.). Although a defendant's consent to a mistrial need not be expressly stated, the court in Wilson noted a split in appellate decisions when a failure to object may be a waiver to a double jeopardy claim (State v. Mengitsu, supra,) and a more positive indication of consent is required. (United States v. Osaghae, 20 Fed.Appx. 369, 371 (6th Cir. 2001)).

In the present case the appellate court found the defendant consented to the mistrial. The court noted the mistrial issue initially arose when the defendant objected to the unredacted information on the video. The judge suggested a possible mistrial if the information could not be redacted and the defendant appeared to agree. After it was determined that the information could not be redacted and the court indicted a mistrial would be granted, the defense counsel’s response of “thank you,” combined with defense counsel's previous argument that a mistrial was appropriate and absent any other indication the defendant opposed a mistrial, the appellate court found implied consent to the trial court's declaration. 

Author’s Note: One critical factor in this case was the trial court’s record during the in-chamber conference with the prosecutor and defense counsel during the trial. Because of the split in appellate decisions whether a defendant must expressly consent to a mistrial or waive any objection by silence, a record of the exchange in a judge’s chambers may determine an appeal.

Also, compare with State v. Hicks, 2024-Ohio-3422 (2d. Dist.) (in September newsletter), finding double jeopardy as grounds for dismissal after mistrial when there is no affirmative assent by the defendant.

Prosecutorial Misconduct in closing argument.

State v. Lopez, 2024-Ohio-4967 (3d. Dist.). Conviction for OVI and failure to identify were reversed due to prosecutor’s statements in closing argument and jury instructions. The defendant was stopped after driving through two stop signs in a row and charged with operating a vehicle under the influence (OVI), refusal to submit to chemical test with a prior OVI conviction, driving under a suspended license, failure to yield and failure to disclose identification information. After a jury trial on all charges except the minor misdemeanor failure to yield charge, which was tried to the bench, the defendant was found guilty of all charges.⁶

During closing argument, the prosecutor stated the defendant’s refusal to perform any field sobriety tests and refusing the breathalyzer were “determining factors in proving innocence." (Par. 31, italics by the court of appeals.). Later, in rebuttal, the prosecutor told the jury the defendant “did not complete field sobriety tests to prove that he wasn't under the influence; or the breath test to prove that he was [sic] under the influence.” (Par. 33.).

The court found the prosecutor’s comments suggested the defendant effectively had a burden to prove his lack of intoxication and mislead the jury on the burden of proof. (Par. 34). The problem was compounded because although the jury was instructed that it was the state's burden to prove guilt beyond a reasonable doubt, the actual definition of reasonable doubt set out in R.C. 2901.05 and the defendant’s presumption of innocence were omitted from the jury instructions. (Par. 37). Based on the prosecutor’s statements and the omitted jury instructions, the convictions were reversed.⁷

Termination procedure with intervention in lieu of conviction.

State v. Brotherton, 2024-Ohio-5045 (12^th. Dist.) Conviction after discharge from intervention in lieu of conviction (ILC) program was affirmed. The defendant entered guilty pleas to two felony charges with an agreement to be eligible for ILC. It was later determined the defendant did not have a substance abuse problem, but lied to the court to avoid a felony conviction. After a hearing ILC was revoked and a prison term was imposed.

On appeal regarding the ILC revocation procedure, the appellate court noted “Community control and ILC are not synonymous . . Under R.C. 2929.01(DD) community control is a 'sanction' that exists as a penalty or punishment for an offense. To the contrary, ILC is not a punishment, it is 'an opportunity for first time offenders to receive help with their dependency without the ramifications of a felony conviction.'" (Par. 17, quoting State v. Brovey, 2020-Ohio-964 (12^th. Dist.)). The court further found that Criminal Rule 32.3, governing community control revocation, does not apply to revocation of ILC because a defendant is not subject to a community control sanction during intervention. (Par. 18, citing State v. Ingram, 2005-Ohio-1967 (8^th. Dist.).

In the present case the court held due process was complied with by notice of the violation to the defendant and an opportunity to be heard on the violation. R.C. 2951.041(F). Although the defendant had the right to have witnesses subpoenaed, to confront and cross-examine witnesses and to present evidence on his own behalf, it was not required in this case due to the defendant’s admission to the violation.

Smell of marijuana

United States v. Brown, No. 23-5893, 2024 U.S. App. LEXIS 26959, (6^th. Cir. 2024). Convictions for drug and firearm charges and order overruling motion to suppress were affirmed. The odor of marijuana at traffic stop was sufficient to have the defendant get out of the car and delay the stop for further investigation. The defendant’s argument that because of the legalization of hemp, which has the same odor, the smell alone was not sufficient to create a reasonable suspicion was rejected by the court. Although the smell of raw marijuana and hemp are indistinguishable, the odor gave rise to a reasonable suspicion that the defendant had an illegal substance.⁸

Discretion of probation officer with court sentence.

United Staters v. Vaughn, No. 24-5090, 2024 U.S. App. LEXIS 27385 (6^th. Cir. 2024). Sentencing order giving the probation officer the authority to 1) schedule drug testing frequency, 2) determine if alcohol treatment was needed, and 3) whether court ordered mental health treatment should be in patient or outpatient was not an improper delegation to judicial authority. (Relying on United States v. Carpenter, 702 F.3d 882, 884 (6th Cir. 2012). See also the summary of United States v. Lindsay, No. 24-5089, 2024 U.S. App. LEXIS 23985, (6^th. Cir. 2024) in the September newsletter which raised similar issues.

Ineffective assistance of counsel issues.

1. Notice of alibi.

State v. Ward, 2024-Ohio-5073 (1^st. Dist.). Convictions for failure to comply, reckless operation, and driving under suspension were affirmed. The defendant raised issues of identification and ineffective assistance of counsel for not timely filing a notice of alibi. In this case the defendant was seen leaving a building of a suspected drug sales site and fleeing from the officer through the city at approximately eighty miles an hour. The chase was called off for safety concerns.

Criminal Rule 12.1 requires a defendant to file a notice of alibi at least thirty days before trial in a felony case and fourteen days before trial in a misdemeanor case. The court found there was nothing in the record to show the defense counsel was aware the defendant was claiming an alibi, and therefore, the lack of timely notice was not ineffective assistance of counsel.

The defendant also claimed lack of identification because the police were unable to make contact with the defendant before he drove away. The police had been watching the building and preparing to execute a search warrant due to illegal drug activities. The record showed, however, that from surveillance video of the defendant entering the building from his rented car, direct observation leaving the building a short time later, the car being driven away, and photos from the police data base, there was sufficient evidence of identification.

2. Accepting plea offer.

State v. Walton, 2024-Ohio-5214 (8^th. Dist.). Denial of motion to vacate conviction and withdraw guilty pleas to charges of multiple counts of aggravated vehicular homicide, aggravated vehicular assault, and one count of operating vehicle under the influence of alcohol or drugs was affirmed.⁹ The defendant raised an issue of ineffective assistance of counsel based on the motion to suppress being limited to the accuracy of the blood test results, but not how the blood was taken, maintained, and chain of custody.

The court found the defense counsel’s stipulation regarding compliance with state regulations regarding the blood sample was not ineffective in the absence of any evidence of noncompliance by the state. Similarly, the defendant was also required to show prejudice from an ineffective defense counsel to withdraw his prior guilty plea. In this case the court found the evidence showing the defendant was alcohol impaired at the time of collision, while driving at a high rate of speed, which resulted in the deaths of three teenage girls did not show the reasonable probability that were it not for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial. (Par. 16, 19, citations omitted.).

OVI supporting evidence.

State v. Miller, 2024-Ohio-4994 (5^th. Dist.). OVI conviction affirmed. The defendant raised insufficient evidence to support the conviction. The appellate court found the evidence in the record, which included the defendant 1) driving over the stop bar at a stop sign, 2) making a left hand turn with no turn signal, 3) odor of alcohol from his breath, 4) glassy, bloodshot eyes, 5) extended time to retrieve insurance information from his phone, 6) inconsistent statements of what he had to drink, 7) six of six clues for HGN test, 8) three of four clues for one leg stand test, and 9) six of eight clues for walk and turn test was sufficient to support OVI conviction.

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.

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

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

• June 16-19, 2025, Drugs in America Today; What Every Judge Needs to Know, NJC, Sioux Falls, South Dakota.

• September 20-21, 2025, National Interdisciplinary Cannabis Symposium, Denver, Colorado.

Free NJC Traffic and other related Programs Online Courses

• 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.)

• Search & Seizure in Impaired Driving Adjudication, NJC, (self-study, 90-120 minutes), Register: https://www.judges.org/courses/search-seizure-in-impaired-driving-adjudication-a-self-study/

“But It’s Just Weed! Understanding the Effects of Cannabis Use on Justice-Involved Adults and Adolescents.” Dr. Kara Marciani, Moderator: Hon. Kate Huffman Link: https://www.americanbar.org/events-cle/ecd/ondemand/444312633/

Podcast

• New AllRise Standards of Justice Podcast episode, “Who belongs in treatment court?” Listen here: https://allrise.org/resources/podcasts-standards/

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.