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Traffic Signals — January 2025

TRAFFIC SIGNALS NEWSLETTER

Dear Colleagues,February 10, 2025

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, 2) notice of revised jury instructions with affirmative defense of failure to yield offenses, and 3) 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 cases also set out specific facts situations for determining reasonable suspicion and/or probable cause which may be of assistance when reviewing motions to suppress.

I am grateful to Paul Pfeifer, Trina Bennington, and the Ohio Judicial Conference staff for their 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, January, 2025.

Traffic stops

1. Improper lane change.

United States v. Celaya-Rodriguez, No. 2:34-cr-56, 2025 U.S. Dist. LEXIS 8664, (S.D. Ohio). The motion to suppress traffic stop was overruled. The officer saw a white box truck driving without headlights in the rain on slowly I-70. As the truck pass, the officer noticed the driver sitting straight back with her arms extended out “as if trying to hide behind the door pillar. The officer saw the truck make an unsafe lane change directly behind another vehicle with only 1 to1 ½ car lengths behind the other car. The truck then pulled behind a semi-truck while driving 65 to 70 miles per hour with a 2 to 3 car length behind the truck.

The officer initiated a traffic stop. He warned the defendant/driver of the close distance behind the other vehicles. The defendant was driving a rental truck from Arizona that she had rented three days earlier and to be returned to Arizona in four days. The back of the truck was secured by a cut proof lock. When asked the purpose of her trip the defendant told the officer she was moving to Pennsylvania. The officer became suspicious due to the size of the truck and the items the defendant told him he was transporting. While checking her driver’s license through the local dispatch center and EPIC¹, a backup officer arrived with a drug dog. After a walk around the truck the dog signaled the presence of narcotics. Fifty kilos of cocaine were located in the truck and the defendant was arrested.

The defendant argued in the motion to suppress that the traffic stop was pretextual.² The court found the improper lane change at unreasonable speeds and closely behind other vehicles in violation of R.C. 4511.33(A) and R.C. 4511.34(A) gave the officer probable cause to stop the defendant. The court also noted the defendant was driving in the rain without headlights in violation of R.C. 4513.03(A)(3), but that violation is a secondary infraction. When an officer has probable cause to believe that a traffic violation has occurred, the resulting traffic stop does not violate the Fourth Amendment. Wren v. United States, 517 U.S. 806, 810 (1996). The court noted the officer’s actual motivation for making the stop is irrelevant.

The court also found the officer did not unreasonably prolong the traffic stop. An officer may conduct certain unrelated checks during an otherwise lawful traffic stop.  Requesting a driver's license, registration, rental papers, running a computer check thereon, and issuing a citation do not exceed the scope of a traffic stop for a speeding violation. Rodriguez v. United States, 575 U.S. 348, 355 (2015). Although a “dog sniff” is not an ordinary incident of a traffic stop, citing Rodriguez, the court noted the critical question is not whether the dog sniff occurred before or after a traffic citation is issued, but whether the dog sniff added time to the stop. In the present case the court found the dog sniff occurred while the officer was waiting on the defendant’s license and registration information and did not prolong the stop.

2. Cracked windshield

State v. Rose, 2025-Ohio-143 (4^th. Dist.). An order overruling a motion to suppress and fentanyl drug trafficking conviction were affirmed. The defendant was initially pulled over for a cracked front windshield and later discovered her license plate was expired. At the stop the officer noticed the defendant/driver refused to make eye contact and the passenger appeared to be drug impaired. In addition to checking with dispatch on the defendant’s license and registration, the officer also sought a criminal background check for both people, discovering both had drug offense histories. The officer called for a K-9 officer for a drug dog sniff. When the officer arrived with the dog, the defendant was asked to get out of the car. A bag of marijuana was seen in the defendant’s waistband of her pants. The dog made a positive hit on the can and the fentanyl was discovered.

The defendant filed a motion to suppress asserting the validity and duration of the traffic stop. The motion was overruled and the defendant plead guilty to the drug offense.

Initial traffic stop

R.C. 4513.02(A) prohibits operating a vehicle with an unsafe condition endangers any person on a street or highway. A crack in the windshield is a violation of R.C. 4513.02 only when the crack is substantial or impairs the driver’s vision. State v. Davis, 2022-Ohio-4251 (11^th.Dist.); State v. Herron, 2014-Ohio- 3166 (2d. Dist.). In the present case the officer testified that it was a large, sizable, cracked windshield and the entire windshield was compromised because of the crack. (Par. 26).

The court found a cracked windshield provided reasonable suspicion to justify a traffic stop because the crack rendered the vehicle "unsafe," by R.C. 4513.02. (Par. 35). Further, A police officer may stop the driver of a vehicle after observing a de minimis violation of traffic laws and the stop is not unreasonable under the Fourth Amendment even if the officer had some ulterior motive for making the stop. (Par. 34-35, citations omitted.).

Duration of traffic stop

A defendant may be detained beyond the normal time frame for a traffic stop when the officer discovers additional facts that give rise to a reasonable, articulable suspicion of criminal activity beyond that which prompted the initial stop. (Par. 39. Citations omitted.). The facts in this case included the occupants drug offense histories as well as their appearance and conduct during the stop. In this case the passenger had glassy bloodshot eyes, her pupils were dilated, and she had very slurred thick speech. Both occupants appeared nervous. The court noted that "[w]hile '[some] degree of nervousness during interactions with police officers is not uncommon, * * * nervousness can be a factor to weigh in determining reasonable suspicion.'" (Par. 42. Citations omitted.).

The traffic stop occurred at 11:04 p.m. After suspecting drug use and verifying the information for the traffic stop, the officer called for the drug dog at 11:08 p.m. The dog arrived at 11:24 p.m. (Par. 44). From the totality of the circumstances discovered by the officer after the stop, the delay was not unreasonable.

3. Turn signal.

United States v. Staats, No. 5:23-CR-00415, 2025 U. S. Dist. LEXIS 11840 (N.D. Ohio 2025). A motion to suppress firearm and methamphetamine based on traffic stop was overruled.³ The officers saw the defendant pull to the side of the road without using a turn signal to park his car and temporarily driving over the sidewalk. Being a high crime area, the officers activated lights and siren. Both the defendant/driver and the passenger got out oof the car with the passenger running away. The defendant initially ignored orders to get back in the car and reached down by his pockets. After putting his hands up and a short scuffle, the defendant told the officers he had a gun in his pocket. The defendant was arrested for having a firearm under disability and put in the back of the police car.

Regarding the traffic stop, R.C. 4511.39 requires the use of a turn signal when a vehicle moves right or left on a highway not less than the last one hundred feet traveled by the vehicle before turning.⁴ The defendant argued the statute did not apply when parking on the side of a residential street without lane markings. The court in Staats cited State v. Brunner, 2008-Ohio-4519 (5^th. Dist.) and State v. Mayo, 2023-Ohio-124 (3d. Dist.), addressing the same issue, which upheld a traffic stop when the driver failed to activate their turn signal before moving to the side of a roadway to park. The court in Mayo relied on the Ohio Legislative Service Commission’s commentary that a turn signal was required when pulling into or out of a parking place. Although the court found the traffic citation was minimal and perhaps pretextual, the officer had reasonable suspicion to make the traffic stop.

4. Stop bar.

State v. Shay, 2025-Ohio-71 (3d. Dist.). An order overruling motion to suppress and an OVI conviction were affirmed. With an officer following at 2:00 a.m., the defendant crossed over the white stop bar at a stop sign with his rear tires on the white bar. After a traffic stop, the officer noticed the driver/defendant has glassy, bloodshot eyes, slurred speech, and a six pack of beer on the passenger seat with one can missing. (During the subsequent vehicle inventory the opened sixth can was found on the floorboard.) The defendant agreed to take the field sobriety tests, but after observing 6 out of 6 clues on the HGN and straying from the marked line during the walk and turn test, the defendant was arrested for OVI. The defendant submitted to a breathalyzer, with BAC results of .116 and .118. The defendant was charged with two OVI counts, operating a vehicle under the influence and operating with a prohibited BAC. The defendant was found guilty of both charges by a jury and the convictions merged for sentencing.

R.C. 4511.43(A) requires a driver approaching a stop sign to stop at the clearly marked stop line, or if none, before entering the crosswalk. As such, it is unlawful to stop astride a clearly marked stop line. State v. Miller, 2015-Ohio-3529, ¶ 24 (3d Dist.). (Par. 16, other citation omitted.). The court also acknowledged a contrary holding that allowed a stop “in, on or near” the stop bar. State v. Drushal, 2014-Ohio-3088, ¶ 12 (9th Dist.); State v. Scott, 2022-Ohio-2071, ¶ 26-29 (6th Dist.). Affirming the order overruling the motion to suppress, the appellate court found the defendant committed a traffic violation which justified the stop by the officer.

E) Rear license plate light.

United States v. Smith, No. 3:23-cr-26, 2025 U.S. LEXIS 9274 (S.D. 2025). A motion to suppress was overruled regarding the traffic stop but granted for lack of Miranda rights. The defendant was pulled over for lack of a rear license plate light in violation of R.C. 4513.05(A). The defendant voluntarily told the officer he had a firearm. It was later discovered the defendant’s license was under suspension and he was under a protection order that prohibited him from possessing a gun. After getting out of the car two other guns were discovered on the back seat.

Regarding the traffic stop, it must be 1) justified at its inception, and 2) reasonably related in scope to the circumstances which justified the interference in the first place. (Citations omitted.). The court held the officer had reasonable suspicion for the stop based on the traffic violation and to ask the defendant introductory questions. "If an officer develops reasonable and articulable suspicion of criminal activity during a stop, he may extend the traffic stop long enough to confirm or dispel his suspicions. Any such extension, though, must be limited in scope and duration." United States v. Winters, 782 F.3d 289, 296 (6th Cir. 2015) (internal quotations omitted). In this case the court found the officer developed a separate reasonable suspicion of criminal activity to exceed the scope of the stop to verify or dispel his suspicion based on the defendant's voluntary statements about his gun possession, the officer’s knowledge of the defendant's protection order, and the officer’s discovery of other guns.

Regarding the Miranda advisement, the court held although the defendant was not in custody and not subject to Miranda warnings before he was removed from the vehicle and his statements are not subject to suppression. Once, however, the officer transformed the stop into a custodial detention and physically removed the defendant from the vehicle, patted him down, and placed him in the back seat of the police cruiser the defendant was in police custody and subject to Miranda warnings.

5. Consensual encounter.

State v. Edmonson, 2025-Ohio-176 (5^th. Dist.). An order overruling a motion to suppress and OVI conviction were affirmed. The officer first saw the defendant driving without a visible license plate. After seeing the defendant again, the officer followed the defendant into a parking lot where the defendant turned off the car lights and went to sleep. The officer walked to the defendant’s car, noticing a strong odor of alcohol. Waking up the defendant, the officer also noted slurred speech and glassy eyes. The defendant submitted to a breath test with a .155 blood/alcohol level.

Regarding the traffic stop, the court found the encounter was consensual. A consensual encounter occurs when a police officer approaches a person in a public place, engages the person in conversation, requests information, and the person is free to refuse to answer and walk away.  State v. Barnett, 2019-Ohio-2313 (5^th. Dist.). In this case the court held the officer did not initiate a stop of the defendant’s vehicle. The defendant stopped his vehicle in the parking lot by his own accord. The officer’s car did not block the defendant’s car from leaving the parking lot. The officer did not activate his overhead lights, and there was no evidence of any show of force by the officer which would restrain the defendant’s movement or make a reasonable person believe he was not free to leave.

Distracted driver.

State v. Horst, 2025-Ohio-332 (7^th. Dist.). Conviction for aggravated vehicular homicide and vehicular assault were affirmed. The defendant was driving while watching a YouTube video on his dashboard mounted phone when he drove left of the centerline and collided head on with another vehicle, killing the passenger and injuring the driver. The defendant initially told the officer at the scene the other vehicle had pulled onto the road without stopping for the stop sign, forcing the defendant to brake hard and swerve to the right. The officer raised doubts about this version based on the location of the vehicles at the time of impact in the same lane, lack of skid marks, and the inability to see the stop sign with the curving road and foliage. In a later interview, after being informed of the inconsistencies in his story, the defendant admitted he was not sure if the other vehicle had pulled onto the road or was travelling in that lane for some time prior. He also admitted “half watching” a YouTube video when he saw he had crossed the centerline directly in front of an oncoming vehicle.⁵

The primary issue on appeal was the trial court’s order to limit the admissibility of testimony from the defendant’s expert witness on the Perception Response Time (PRT) relating to whether the defendant acted recklessly. The court found that an expert witness may be permitted to testify on the ultimate issue of a case, which in this case involved the element of recklessness.⁶

The court noted, however, that the issue in this case was whether the defendant’s conduct, watching a YouTube video while driving around a foliage-lined bend leading to a park entrance in excess of the posted speed limit amounted to recklessness. As such, the issue was not the actions he took once he perceived and attempted to avoid the collision, but his actions in causing that collision. (Par. 28). The court noted the defendant's own admissions that he operated his vehicle while distracted, and that because of the distraction, he did not notice the other oncoming vehicle also traveling on the roadway made the PRT evidence irrelevant. (Par. 48).

The dissent in this case stated the expert testimony should have been allowed and if believed by the jury, would have permitted a lesser included offense of negligent operation, as opposed to reckless operation.

Prior conviction and enhancement issues.

State v. Medford, 2025-Ohio-140 (3d. Dist.). An order overruling a motion to suppress the defendant’s prior conviction and felony OVI conviction were affirmed. The issue in this case was the validity of a 2020 OVI conviction that was used to enhance the degree of the OVI offense in this case.

Prior judgment of conviction.

The defendant asserted the 2020 conviction was characterized as a journal entry, not a judgment and therefore, not valid. While the appellate court agreed that the better practice is to clearly state the judgment entry of conviction, the sentencing order in the prior conviction set out 1) the fact of the conviction, 2) the sentence, 3) the judge's signature, and 4) the time stamp indicating the entry upon the journal by the clerk. Therefore, the journal entry satisfied the requirements of a final judgment by Criminal Rule 32(C). As such, the judgment of the prior conviction was not defective.

Uncounseled plea.

Although a prior conviction is not subject to attack in a later case, as an exception, a defendant may collaterally attack a conviction when the state proposes to use the past conviction to enhance the penalty of a later criminal offense. State v. Gerken, 2023-Ohio-2244, ¶ 22 (6th Dist.). (Par. 15). When the issue of an uncounseled plea is raised to avoid enhancement, there is a presumption of constitutionality and regularity with the prior conviction with the obligation on the defendant to introduce contrary evidence. (Par. 16, citations omitted.). Once the defendant makes a prima facie showing that the prior conviction was uncounseled, the burden shifts to the prosecutor to show the right to counsel was properly waived. State v. Thompson, 2009-Ohio-314 (Par. 16).

Regarding an effective waiver of counsel under Criminal Rule 22 and 44(C), the court distinguished between:

1. Serious offence (confinement more than six months), which must be 1) in writing, 2) made in open court, and 3) recorded, and

2. Petty offense (confinement of six months or less), which is made 1) in open court and 2) recorded.

In the present case the court of appeals agreed with the trial court that the defendant waived his right to counsel in the 2020 OVI conviction. The trial court reviewed the audio recording of the plea colloquy between the defendant and the court in the 2020 conviction in which the defendant not only waived counsel but asserted his right to represent himself after being appointed counsel by the court. Moreover, although classified as a petty offense, the defendant also executed a waiver of counsel. Reviewing the totality of the circumstances, the court found the defendant knowingly, intelligently, and voluntarily waived his right to the assistance of counsel before pleading guilty in the 2020 OVI case. (Par. 30, citations omitted).

Application of res judicata

The defendant was also arrested in 2023 for OVI which he plead no contest with an agreement to consider the charge as a “first offense.” The defendant argued the amendment to a first offense was based on the invalidity of the 2020 OVI conviction and could not be challenged in the present case. The appellate court held, however, there was no evidence in the record that the defendant’s 2023 OVI conviction was amended to a "first offense" because of any alleged infirmity with his 2020 OVI conviction.  (Par. 34, emphasis in the original). Moreover, based on the rejection of the defendant’s other attacks on the validity of the 2020 conviction, the 2020 OVI conviction was not infirm.

State v. Rivera, 2025-Ohio-314 (6^th. Dist.). The conviction and sentence for aggravated vehicular homicide and vehicular assault were affirmed. This case involved a single car collision where the defendant drove off the side of the road resulting in the death to one child in the back seat and serious injuries to the other two passengers. While at the hospital, a urine screen was ordered which showed the defendant was positive for THC and opioids. The defendant claimed he had smoked marijuana weeks before and the opioids were given to him at the hospital before the urine screen.

The defendant was indicted two counts of aggravated vehicular homicide, R.C. 2903.06(A)(1)(a) (while committing an OVI offense) and R.C. 2903.06(A)(2)(a) (recklessly), two counts of aggravated vehicular assault, R.C. 2903.08(A)(1)(a), (OVI offenses), and OVI, R.C. 4511.19(A)(1)(a). The defendant later plead guilty to aggravated vehicular homicide in violation of R.C. 2903.06(A)(2)(a) (reckless) and amended count of vehicular assault in violation of R.C. 2903.08(A)(2)(b) (reckless). The remaining count were dismissed. The plea agreement removed all OVI related charges. The defendant was sentenced on the aggravated vehicular homicide offense to 60 months and concurrently to 18 months on the vehicular assault offense.

R.C. 2929.14(A)(3) provides for the possibility of a longer sentence for certain offenses, including R.C. 2903.06. R.C. 4511.19 is also included in the list of offenses under R.C. 2929.14(A)(3). The issue before the court at sentencing was under whether an OVI offense was a separately listed offense or, by punctuation placement, an additional requirement to impose a longer sentence under R.C. 2903.06.

The court held the offenses were disjunctive, and that R.C. 2903.06 and R.C. 4511.19 were separate, so the sentencing statute applied to R.C. 2903.06 alone without regard to whether the defendant had been convicted of R.C. 4511.19. Although the sentence was affirmed on appeal, the court did not directly address the application and interpretation of R.C. 2929.14(A)(3) and whether an OVI conviction applied to the aggravated vehicular homicide conviction or a separate offense.⁷ The issues raised by the defendant on appeal either did not directly raise this issue or raised new issues that were not raised and preserved in the trial court.

Author’s Note: R.C. 4511.181 defines an “equivalent offense” for OVI enhancement to include a prior conviction for R.C. 2903.06(A)(1)(a) and R.C. 2903.08(A)(1)(a) as both offenses are predicated on a finding that the death or injury was due to an OVI offense. A “non OVI” conviction of either R.C. 2903.06 or R.C 2903.08 may also be included as an equivalent offense if the judge or jury as the trier of fact found that the defendant was under the influence of alcohol, a drug of abuse, or a combination of them. R.C. 4511.181(A)(5).

Effect of guilty plea.

State v. Martinez, 2025-Ohio-122 (6^th. Dist.). A trial court order to hold the defendant without bond was affirmed. The defendant was charged with two counts of aggravated vehicular homicide, two counts of operating a motor vehicle while under the influence of alcohol or drugs, misdemeanors of the first degree, and one count of driving a motor vehicle while under an OVI suspension, a misdemeanor of the first degree. The defendant was driving with a .18 BAC over the Toledo High Level Bridge at 82 mph in a 35 m.p.h. zone in the wrong direction and on the wrong side of a concrete barrier, striking another car head on, instantly killing the other driver. The defendant admitted she had consumed five shots of alcohol shortly before the incident. Based on these facts, as set out on the record by the trial judge, the court found there was no condition of release could reasonably assure public safety.⁸

Subsequent to the notice of appeal, the defendant entered guilty pleas to one count of aggravated vehicular homicide, one count of Ovi and driving under an OVI suspended license and sentenced to prison. The court on appeal noted a guilty plea waives the right to raise most issues on appeal unless such errors are shown to have precluded the defendant from voluntarily entering into his or her plea pursuant to the dictates of Crim.R. 11. This includes or all non-jurisdictional defects and constitutional violations that occurred before he entered his guilty plea and that do not stand in the way of conviction if factual guilt is validly established. State v. Gibson, 2023-Ohio-1776, ¶ 12 (6th Dist.) (Par. 10). The court in the present case found the defendant’s attack on R.C. 2937.222 were based on the application of the statute on non-jurisdictional grounds in an earlier stage of the proceedings that occurred prior to the guilty plea, rather than the constitutionality of the statute and waived by the defendant’s guilty pleas.

State v. Rose, 2025-Ohio-143 (4^th. Dist.). A guilty plea is “a complete admission of the defendant's guilt." Crim.R. 11(B)(1). When a defendant "voluntarily, knowingly, and intelligently enters a guilty plea with the assistance of counsel “may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea.” State v. Fitzpatrick, 2004-Ohio-3167. (Par. 29, other citations omitted). Any non-jurisdictional issue that arose prior to the guilty plea, including the court’s ruling on a motion to suppress, is waived. (Citations omitted).⁹

Field sobriety test compliance.

1. Field Sobriety tests upheld.

State v. Garcilaso, 2025-Ohio-352 (4^th. Dist.). An order overruling a motion to suppress and aggravated vehicular homicide conviction were affirmed. The defendant struck multiple vehicles before crashing into the front of a house and killing the homeowner. At the scene the officer smelled both marijuana and alcohol from the defendant. The defendant admitted to having two or three drinks. The defendant was administered the three standard field sobriety tests, and based on their results the defendant was arrested. A motion to suppress the field sobriety tests was overruled.

The court noted the officer asked the questions required before the HGN test, but did not ask about the defendant’s medical history. (Par. 9). The instructions for the walk and turn test were “almost verbatim” to the NHTSA Manual Regarding the one leg stand test, the court noted the manual did not provide an exception to an obese person. As such, there was substantial compliance with the NHTSA standards for the field sobriety tests. (Par. 10).

The court also noted properly administered field sobriety tests can provide law enforcement with information to form a reasonable belief that a suspect operated a vehicle while under the influence of alcohol or drugs. (Par. 10, citing State v. Richards, 2015-Ohio-669 (4th Dist.). Field sobriety tests, however, are not the sole basis for an OVI arrest and based on other factors, probable case can be shown when there is a refusal to comply with requests to perform field sobriety tests and no chemical test results were available to determine alcohol concentration. (Par. 11). In the present case the factors included 1) colliding with multiple parked vehicles, 2) colliding with a house that collapsed the roof and killed the resident, 3) an odor about his person of an alcoholic beverage and marijuana, 4) physical unsteadiness aside from the field sobriety tests, and 5) admitting recent alcohol consumption.

2. Field sobriety tests rejected.

State v. Parks, 2025-Ohio-191 (1^st. Dist.). An order overruling motion to suppress was reversed. The defendant was pulled over after being recognized by the officer for an outstanding arrest warrant. The officer noticed the defendant’s eyes were glassy and watery, she seemed lethargic, with slurred and slowed speech, and a strong odor of alcohol emanated from her vehicle. The defendant agreed to take the field sobriety tests and based on the results, was charged with two OVI counts, operating a vehicle under the influence and refusal with a prior OVI conviction in ten years. The defendant was also charged with child endangering due to two children in the car and other unrelated offenses. The defendant’s motion to suppress was overruled and after a jury trial, the defendant was found guilty of both OVI counts and both child endangering counts.

Clerical errors

The trial court’s judgment entry mistakenly referred to both a jury verdict and guilty plea to the charges. The appellate court characterized the guilty plea wording as an accidental inclusion in the judgment entry that did not affect final judgment. The error was one that was predictable and understandable given the high volume of cases processed by municipal courts and could be corrected by the trial court under Crim. Rule 36. (Par. 28, citations omitted.).

Field sobriety tests.

Regarding the motion to suppress, the defendant filed a “generic” motion to suppress regarding lack of substantial compliance with the NHTSA standards. The officer testified at the hearing that prior to each test, he read aloud instructions to the defendant from a "cheat sheet," a document distributed by his police department detailing how each field sobriety test would occur. (Par. 11). The document was not offered as an exhibit at the hearing and there was no video recording. The officer testified the defendant failed all three tests.

The officer was cross examined on specific compliance with each test. He admitted that he could not remember the instructions or steps for administering each test, but needed to refer to his “cheat sheet” for guidance, which he did not have with him at the hearing. He further testified he did not screen the defendant, as required, about any factors that could compromise the tests, such as wearing glasses or contacts, or preexisting medical issues. (Par. 19).

The appellate court noted when a defendant files a “shotgun” motion, which generally raises suppression issues, the burden on the state is “general and slight” to show the officer complied with the relevant standards. State v. Richards, 2016-Ohio-3518, (1st Dist.). When, however, the defendant identifies specific issues of non-compliance on cross examination or other evidence, the burden shifts to require the prosecutor to establish by clear and convincing evidence that there was substantial compliance with the NITSA standards on the specific test or issue being disputed. (Par. 33.). The court noted that the elevated burden on the state is limited to the specific areas raised by the defense. Par. 35-36).

In the present case defense counsel asked pointed questions to the officer on the administration of each test. The officer was not able to provide any detailed information other than he relied on his information card. (Par. 42). The court found the specific questions and the responses they elicited from the officer were sufficient to shift the prosecution’s burden from general and slight to substantial compliance as to all three field sobriety tests. (Par. 44). Based on the record, the court found the state did not show the field sobriety tests were performed in substantial compliance with the NHTSA standards, vacated the convictions, and remanded the case for a new trial. In doing so, the appellate court noted that although the field sobriety test results would be inadmissible in a new trial, it did not preclude the officer from testifying about his observations of the defendant’s behavior and demeanor during field sobriety testing. (Par. 47).

State v. Nesbitt, 2025-Ohio-223 (9^th. Dist.). An order partially overruling a motion to suppress based on administration of the HGN test was reversed. A traffic stop occurred after the officer saw the defendant fail to make a complete stop at a red light. At the scene the officer detected signs of impairment and performed two divided attention tests. The defendant was asked the defendant to submit to field sobriety tests, The HGN test was administered with the officer determining four out of six clues. The defendant refused to take the remaining tests and was arrested for OVI. The defendant later took the remaining tests at the police station, but as the court noted, could not be considered as the basis for her arrest that had already occurred. After the defendant’s motion to suppress was overruled in part, the defendant was found guilty by a jury of two OVI counts, operating a vehicle under the influence and refusal with a prior OVI conviction in ten years.

The trial court held a hearing on the defendant’s motion to suppress and found the officer did not properly administer the test for smooth pursuit in substantial compliance with the NHTSA manual as part of the HGN test. (Par. 10). Consequently, the trial court ruled that only 3 clues, not 4 as the officer found, were admissible. (Par. 11). The officer was permitted to testify to the jury about the three clues from the HGN test.

On appeal, the court found that when the trial court determined the HGN test was not administered in substantial compliance with the NHTSA standards, the proper remedy is to exclude, not modify the test results when determining 1) if there was probable cause to arrest the defendant for an OVI offense or 2) admissibility as evidence at trial. (Par. 17). The court noted that under R.C. 4511.19(D)(4)(c), a finding of lack of substantial compliance with reliable standards does not limit or preclude the court from determining probable cause for arrest based on other evidence or testimony. In this case, there was evidence of two non-standardized tests, a traffic violation, a slight odor of alcoholic beverage, the defendant’s difficulty in selecting appropriate words, and slurred speech. The case was remanded for a determination for probable cause for the arrest.

State v. Poole, 2025-OPhio-91 (1^st. Dist.). The order granting motion to suppress was affirmed. The defendant was stopped for speeding and the officer smelled alcohol on her breath. When asked for her driver’s license the defendant handed the officer a credit card. The defendant agreed to field sobriety tests. After conducting the three NHTSA field sobriety tests, he conducted an additional test, the Modified Romberg,

Granting the motion to suppress, the court found the HGN test was not properly conducted as the defendant’ was facing her car’s flashing hazard lights during the test. After. reviewing the officer’s video, the court also noted that the results of the walk and turn and one leg stand tests conflicted with the officer’s statements in his report and his testimony at the suppression hearing. The court also concluded the Modified Romberg test was showed the officer was not convinced of the defendant’s impairment from the NHTSA field sobriety tests.

The trial court in this case made detailed findings, noting numerous inconsistencies between the officer’s testimony and the video recording at the scene. In addition, the odor of alcohol was not sufficient to show impairment, especially when the person lacked other indicia of intoxication like bloodshot eyes or slurred speech.  (Par. 35, citation omitted.). Based on the trial court’s view of the credibility of the testimony at the suppression hearing, the order granting the suppression motion was affirmed.

OVI evidence and trial issues.

State v. McMurray, 2025-Ohio-196 (2d. Dist.). An order overruling motion to suppress and OVI conviction under R.C. 4511.19(A)(1)(b) (prohibited whole blood concentration) were affirmed. An officer saw a car "brake check" a truck that was traveling behind it, slowing down to approximately 15 mph before speeding back up again. A short time later, the same car changed lanes without using its turn signal within the required distance. At the traffic stop the officers smelled the odor of alcohol, glassy eyes, and a can or beer and a red solo cup in the front seat cupholders.

Due to the defendant’s verbal aggression towards the officers, field sobriety tests were not offered, but the defendant agreed to submit to a blood test. The defendant was taken to a hospital and a phlebotomist drew two vials of blood. The vials were put into an OVI test box, transported to the police station, and placed it in the refrigerator. The sample was eventually tested at the Hamilton County Crime Lab, and the results showed .13755 grams of alcohol per 100 milliliters of blood. (Par. 5).

Ohio Administrative Code Compliance.

By Adm. Code 3701-53-02(B)(1), blood test measurements are to be expressed as equivalent to grams by weight of alcohol per one hundred milliliters of whole blood, blood serum or plasma (grams per cent by weight). The defendant asserted the toxicologist testified of the blood results without delineating whole blood, blood serum or plasma. Reviewing the record, the court found the testimony concerned only whole blood and there was nothing in the record about steps taken to convert the whole blood into serum or plasma. (Par. 10). Relying on State v. Burnside, 2003-Ohio-5372, the court further noted that only substantial compliance with the Ohio Administrate Code was required for de minimis errors which would include omitting the word “whole” in the report.

The defendant also asserted that Ohio Admin Code 3701-53-06 and 3701-53-07, regarding the reliability of the storage tubes, should be read together for reliable evidence. 3701-53-06 concerns drawing the blood and storage in tamper free, labeled vacuum tubes. 3701-53-07 concerns chain of custody and length of time to keep the blood samples. Contrary to the defendant’s assertion, the court found the two regulations are separate and do not require a record of where the collection tubes came from or document their reliability. (Par. 15).

Jury Instructions.

The defendant disputed the jury instructions and argued at the trial that the prosecutor was required to prove the defendant’s blood-alcohol level at the time he was actually driving the car. (Par. 23, emphasis by the court of appeals). The court found there was no practical difference between the defendant proposed term “at the time of operation, “ and the instruction given to the jury of "operated a vehicle”  (Par. 28). Moreover, to measure a person's blood-alcohol content at the exact time he or she was driving would take an in-car device that constantly checked the driver's blood-alcohol level while actively operating the vehicle. The defendant’s argument also ignored the three hour period to collect the blood under R.C. 4511.19(D)(1)(b).

State v. Dove, 2025-Ohio-**** (1^st. Dist.). OVI conviction affirmed. A witness called the police after seeing the defendant crash his motorcycle into a guardrail and run off on foot into the woods. The police were able to locate the defendant with the aid of a thermal-imaging device. The defendant refused a urine test but disputed that it was requested within the two hour time limit imposed by R.C. 4511.192. The court held, based on the time of the eyewitness’ call to the police, that the request to submit to the urine test was timely.

Regarding the sufficiency of the evidence in support of the OVI conviction, the court held there was sufficient evidence of impaired driving to support the conviction, including:

1. Causing the collision,

2. Admission of alcohol consumption,

3. Strong odor of alcohol

The court also noted the defendant’s running away was evidence of consciousness of guilt, relying on State v. Eaton, 19 Ohio St.2d 145 (1969), paragraph six of the syllabus.

Sentencing and court discretion.

State v. Tolliver, 2025-Ohio-132 (12^th. Dist.). OVI and driving under suspended license convictions were affirmed in part, reversed in part, and the matter remanded for the limited purpose of issuing a nunc pro tunc sentencing entry. The court found inconsistencies between the length of license suspension at the sentencing hearing and the judgment entry. The court further found the inconsistency was a clerical error that court be corrected through a nunc pro tunc entry. State v. Goldberg, 2023-Ohio-2633 (12th Dist.). (Par. 7).

The court affirmed the 180 day sentence for the OVI conviction, finding the sentence was within the statutory time and the trial court properly noted the defendant’s extensive criminal history. The trial court also noted that the defendant had been shown leniency in the past which had not succeeded. The defendant’s reference to other OVI offenses with lesser jail sentences alone was not sufficient to show an abuse of discretion without a full explanation of the facts of each case. The court noted “consistency in sentencing does not mean uniformity.”  A consistent sentence is not derived from a case-by-case comparison, but from the court's proper application of the statutory sentencing guidelines. State v. Micomonaco, 2012-Ohio-5239 (12th Dist.). (Par. 15).

State v. Mogle, 2025-Ohio-12 (2d. Dist.). Convictions for driving under a suspended license and unauthorized use of a motor vehicle were affirmed. The defendant entered a guilty plea to both charges with an unrelated misdemeanor charge dismissed. The defendant was sentenced to fifty-two days in jail with twenty six days suspended for driving under a suspended license. The defendant was given a twenty six day jail sentence to run concurrently to the unauthorized use of property offense.

On appeal the defendant asserted the jail sentence was excessive for a non-violent offense. The court found that the sentence was within the range for the criminal offenses in this case. In addition, the court noted in the absence of a mandatory sentence, the trial court has discretion to impose sanctions to achieve the purposes and principles of misdemeanor sentencing, which may include any sanction or combination of sanctions authorized.  State v. Horr, 2022-Ohio-3160 (2d Dist.), citing R.C. 2929.22(A). (Par. 18). The court found the trial court properly considered the defendant’s record of past traffic offenses and it was not an abuse of discretion to impose the sentence.

Civil actions against police and municipalities in OVI cases.

Grose v. City of Bartlett & In re Grose, Nos. 23-5937/6117, 2025 U.S. App. LEXIS 571 (6^th. Cir. 2025). Summary judgment against plaintiff and denial of petition for a writ of mandamus were affirmed. On review, the appellate court found:

1) reasonable suspicion to stop the defendant; the officer saw the defendant’s truck travel 12 miles per hour over the posted speed limit, cross "the center line multiple times," and swerve into the curb lane, and

2) probable cause to arrest the defendant based on defendant’s smell of alcohol, bloodshot eyes, slurred speech, unsteady walking and using the car door for support, inability to complete the field sobriety tests, and open beer in the defendant’s truck discovered when the officer went into the truck at the defendant’s request to retrieve personal items.

Brisbane should get out of town.

City of Garfield Heights v. Brisbane, 2025-Ohio-47 (8^th. Dist.). Convictions for OVI and driving under suspended license were affirmed. The defendant was arrested for OVI after being in a collision and seen staggering from the vehicle. The responding officer noted the defendant had slurred speech, an odor of alcohol, and glassy and bloodshot eyes. The defendant failed a field sobriety test and later refused a breath alcohol test.

ALS Appeal.

R.C. 4511.197(A) permits an appeal of the ALS up to thirty days after the initial appearance. The court found the license appeal was filed on April 13th, more than thirty days after the initial appearance on February 8^th., and therefore, the trial court lost jurisdiction to consider the ALS appeal, relying on Westlake v. Pesta, 2009-Ohio-4713(8^th. Dist.) (Par. 14).

Double jeopardy.

The defendant asserted that his six-month sentence for a probation violation from the Bedford Heights Municipal Court for his arrest in the present case was effectively double jeopardy.¹⁰ Rejecting this argument, the court held sanctions imposed for violating community control or probation are not considered punishment for purposes of double jeopardy. State v. English, 2021-Ohio-850, ¶ 25 (8th Dist.), citing State v. Peters, 2009-Ohio-5836, ¶ 13-14 (8th Dist.). As such, "double jeopardy does not preclude a defendant who was sanctioned for violating post-release control from being prosecuted for the same conduct." State v. Black, 2011-Ohio-1273, ¶ 14 (2d Dist.) (Par. 28).

Pro se motions

When a defendant in a criminal case is represented by counsel, the trial court is not required to rule on pro se motions. Although a defendant has a right to represent himself/herself, a defendant in a criminal case does not have a right to hybrid representation. State v. Martin, 103 Ohio St. 3d 385, 2004-Ohio-5471, 816 N.E.2d 227, paragraph one of the syllabus. State v. Mongo, 2015-Ohio-1139 (8^th. Dist.). (Par. 16).

City of Bedford Heights v. Brisbane, 2025-Ohio-42 (8^th. Dist.). Community control supervision violation was affirmed. The defendant was charged with 1) OVI , 2) OVI with refusal and prior conviction within twenty years, 3) driving under a suspended license, and 4) slow speed. The defendant plead no contest to driving under suspended license with the remaining charges dismissed. The defendant was placed on two years community control supervision with up to 180 days in jail for further violations. While on community control supervision the defendant was charged with a new, separate OVI offense in Garfield Heights.¹¹

Based on the Garfield Heights arrest and a new charge in the Bedford court for driving under a suspended license, community control supervision was revoked and the prior suspended jail sentence was imposed.

Claim of errors in conviction

The defendant raised issues regarding the validity of the OVI arrest on appeal from the probation violation finding. The record shows the trial court had conducted a hearing on a motion to suppress, which was granted in part and overruled in part. Following this ruling the defendant entered a no contest plea to the charge, stipulated to probable cause for the arrest, was found guilty, and placed on probation with a suspended jail sentence. No appeal was taken from the conviction.

The appellate court noted the defendant had a right to appeal the suppression order by way of direct appeal from the judgment of conviction. Under the res judicata doctrine, the defendant was barred from raising the issue any defense or any claimed lack of due process that was raised or could have been raised by the defendant in the judgment of conviction or on an appeal from that judgment. State v. Santiago, 2011-Ohio-3059, ¶ 14 (8th Dist.), quoting State v. Perry, 10 Ohio St.2d 175, 180 (1967).  (Par. 15). As such, the defendant was precluded from raising the issue on appeal from the probation revocation order.

Probation violations hearing procedure.

Due process rights apply to a probation revocation proceedings and are met with:

a) written notice of the claimed probation violations;

b) disclosure to the probationer of evidence against him;

c) providing the defendant an opportunity to be heard in person and to present witnesses and documentary evidence;

d) the right to confront and cross-examine adverse witnesses;

e) a "neutral and detached" hearing body; and

f) a written statement by the court of the evidence relied upon and reasons for revoking probation. State v. Simpkins, 2006-Ohio-3496 (8th Dist.). 

In the present case, although there was not strict compliance with these requirements, the appellate court found the trial court made oral statements of the violations on the record and gave notice of the hearing prior to the hearing. The defendant was represented by counsel, given the opportunity to address each violation, and cross examine the probation officer. Further, the trial court set out its findings in the judgment entry revoking probation.

The court also found separate preliminary and final hearings were not required in a probation violation proceeding. (Par. 26, citations omitted.). A preliminary probable-cause hearing and then transitioned into a revocation hearing, there is no due process violation. State v. Macura, 2019-Ohio-4064 (8th Dist.), citing State v. Patton, 2016-Ohio-4867 (8th Dist.). In the present case the violation hearing began as a preliminary probable-cause hearing and transitioned into a revocation hearing. Moreover, the defendant did not object to the combined hearing. As such there was no due process violation.

II. Revised Jury instructions to Aggravated vehicular homicide, vehicular homicide, R.C. 2903.06 to add an affirmative defense to underlying element of failure to yield the right of way.

There are four separate grounds for aggravated vehicular homicide and vehicular homicide. R.C. 2903.06(A)(4) involves a collision predicated on a minor misdemeanor traffic offense. Most traffic violations are strict liability offenses. For a “failure to yield” offense, as set out in R.C. 4511.41 through R.C. 4511.48, however, there is an affirmative defense of forfeiture of the right of way when the other driver or pedestrian was not proceeding in a lawful manner at the time of the collision. This affirmative defense is limited to minor misdemeanor traffic offenses. R.C. 2903.06(A)(4). Applying the same principles, the affirmative defense of forfeiture of the right of way for not proceeding in a lawful manner also applies to separate, misdemeanor failure to yield violations.

The jury instructions for R.C.2903.06 were recently revised by the Ohio Jury Instructions Committee to include the forfeiture affirmative defense. CR 503.06, Par. 18. Even in a bench, trial, the jury instruction sets out the elements of the offense and applicable affirmative defenses.

When jury instructions are completed by the committee, there is a delay before they are published on LEXIS and Westlaw. To avoid any delay in providing accurate jury instructions to judges, they are available on the Ohio Judicial Conference website on a temporary basis until published on Lexis and Westlaw.

Access to the recent jury instructions on the Ohio Judicial Conference website is limited to judges and password protected and easily accessible. Before any jury trial it is advisable to check the jury instruction section on the Ohio Judicial Conference website in case of any recent revision due to an appellate decision or legislative enactment. Attorneys are advised to request the trial judge to check of Ohio Judicial Conference website for the most current, up to date jury instructions.

3. Upcoming Education Opportunities.

2025 Judicial Ohio Association Conferences

• April 2, 2025, Retired Judges annual seminar, Columbus, Ohio. (Limited to active and retired judges.)

• June 25-27, 2025, Ohio Common Pleas Judges Association, (Limited to active and retired common pleas judges.)

• July 14-16, 2025, Summer Conference, Association of Municipal and County Court Judges of Ohio, Nationwide Conference Center, Lewis Center, Ohio. (Limited to active and retired municipal and county court judges.)

• September 11-12, 2025, Annual meeting of the Ohio Judicial Conference, Hilton Easton, Columbus, Ohio. (Limited to active and retired judges.)

• October 9, 2025, Impaired Driving Symposium, Ohio Judicial College, Columbus, Ohio, (Limited to active and retired judges.)

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, National Judicial College Indianapolis, Indianna. (Note: Travel funds available for attendees.)

• May 19-20, 2025, Ohio Traffic Safety Summitt, The Ohio State University, Columbus, Ohio.

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

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

• July 21-23, 2025, Impaired Driving Case Essentials, National Judicial College, Phoenix, Arizona.

• August 19-22, 2025, In-depth education on the judge’s role in treatment courts, AllRise Treatment Court Institute, Oklahoma City, Oklahoma. 

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

Free NJC Traffic and other related Programs Online Courses (Judges.org.)

• Taking it to the Streets: Addressing the Challenges of Cannabis Impaired Driving.

• A Culture of Quality in Impaired Driving Cases: Due Process and Guilty Pleas.

• Harnessing Technology to Monitor Substance Use in Impaired Driving Cases.

• Impaired Driving 2024: What’s Next?

Other resources.

• February 20, 2025, 1:00 p.m. Webinar, Mental Health and Impaired Driving – Research, Practice, and Policy, National Alliance to Stop Impaired Driving (NASID), Responibility.org.

• 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 State Bar Association offers a wide variety of related video courses and live webinars with approved continuing legal education credit. The on demand video courses are generally one hour long. Membership with the Ohio State Bar Association is not required for registration, but there is a membership discount. See the CLE store at Ohiobar.org.