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Traffic Signals — February 2025

TRAFFIC SIGNALS NEWSLETTER

Dear Colleagues,March 6, 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, 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 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, February, 2025.

OVI Offense

1. Operation of vehicle.

State v. Wright, 2025-Ohio-672 (1^st. Dist.). OVI conviction affirmed. The police found the defendant at a gas station, unconscious in the driver's seat of a vehicle with his foot on the brake, and that the vehicle was running and in gear. The defendant did not dispute he was impaired. The only issue was whether the defendant operated the vehicle while impaired.

When the officer arrived, he reached over from the passenger side of the defendant’s car and shifted the gear from drive to park. When the defendant awoke, he denied using any drugs. Based on his physical condition, he was charged with OVI. A post arrest toxicology report showed multiple drugs in the defendant’s system, including marijuana, cocaine, amphetamines, clonazepam, alprazolam, and fentanyl-related compounds.

The defendant admitted he drove the car to the gas station but denied using any alcohol or drugs prior to his arrival at the gas station. (Par. 5). The defendant testified he took an unspecified drug at the gas station and passed out. It was a twenty minute drive from his parent’s home to the gas station. The court found this timeline supported the inference the defendant had ingested intoxicating substances prior to his arrival. Although the officer did not actually see the defendant’s car in motion, from his unconscious condition, the running vehicle, and a crack pipe on his lap, the toxicology report of the multiple drugs the defendant had consumed, the trier of fact could reasonably infer from the evidence presented the defendant had operated his vehicle while impaired. (Par. 14).

Mistrial and double jeopardy.

City of Cleveland v. Lombardo, 2025-Ohio-551 (8^th. Dist.). Denial of motion to dismiss OVI charge on double jeopardy grounds was affirmed. At the commencement of trial, the prosecutor informed the court and defense counsel that the police video included a reference by the defendant of two prior convictions for physical control. The prosecutor informed both that the reference had been clipped from the video. At the trial, however, the video was played to the jury and the defendant’s statement about the two prior physical control could be heard.

In a sidebar with counsel both attorneys agreed the proper remedy was a mistrial. The trial court spoke to the jury and some of the jurors indicated they had heard the statement. The jury was excused. On the day of the second trial, the defendant moved for dismissal on double jeopardy grounds for prosecutorial misconduct, which was overruled.

The denial of a motion to dismiss on double jeopardy grounds is a final appealable order subject to immediate appellate review. State v. Anderson, 2014-Ohio-542. (Par. 11). When a defendant requests a mistrial, double jeopardy does not prohibit a retrial unless the defendant's request was precipitated by prosecutorial misconduct that was intended to elicit the defendant to seek a mistrial. State v. Truhlar, 2016-Ohio-5338 (8th Dist.) (other citations omitted.).

The Double Jeopardy Clause protects defendants against bad faith conduct by a judge or prosecutor that subjects defendants to the substantial burdens imposed by multiple prosecutions and affords the prosecution a more favorable opportunity to convict the defendant. (Par. 14, citations omitted.). Dismissal for double jeopardy by prosecutor misconduct is a narrow exception reserved for the limited circumstances when the nature of the state's misconduct clearly and unquestionably demonstrates its intent to cause or invite a mistrial. (Par. 16, citing  State v. Kelly, 2015-Ohio-1948 (8th Dist.). Factors to determine intent to provoke a mistrial include:

1) a sequence of overreaching prior to the single prejudicial incident;

2) the prosecutor resisted or was surprised by the defendant's motion for a mistrial; and

3) findings of the trial court concerning the intent of the prosecutor. 

State v. Patterson, 2015-Ohio-873 (8th Dist.). 

In the present case the court held the record did not show the prosecutor intentionally played the clip to prejudice the jury or a strategic ploy to induce a mistrial. The unclipped statement in the video was due to inadvertence, not intentional conduct. (Par. 21-22). The trial court initially indicated a curative instruction would remedy the issue but granted the mistrial due to agreement by the prosecutor and defense counsel. Moreover, the court noted that the defendant had not filed a motion in limine to exclude the statement, but instead, it was bought to the court’s and defense counsel’s attention by the prosecutor.

Speed estimates.

State v. Scott, 2025-Ohio-419 (3d Dist.). A conviction for endangering children was affirmed. The defendant was driving with his girlfriend and her two year old daughter alongside the co-defendant in another car in a thirty five mile zone. As the two cars drove together both cars continued to accelerate, reaching an estimated speed of fifty three miles per hour. A third car, driving the opposite direction, made a left hand turn, and collided with the two cars. The third driver was cited for failure to yield, but died from her injuries while still in the hospital. In a jury trial the defendant was acquitted for aggravated vehicular homicide but found guilty of child endangering.

The defendant asserted a violation of the Sixth Amendment Confrontation Clause from the officer’s testimony of three witnesses. Addressing each witness, the court held:

1. A witness’s out of court statement to a police officer that was relayed to the jury by the officer was not subject to the Confrontation Clause when that same witness also testified and was subject to cross examination.  (Par. 13, citing State v. Bender, 2020-Ohio-722 (3d Dist.), other citations omitted).

2. A witness’s out of court statement to a police officer that contradicted the prosecution’s evidence and theory of the case, although a violation of the Confrontation Clause, was harmless error as it did not reasonably contribute to the defendant’s conviction. (Par. 14). The witness had told the officer he did not think the two cars were racing when the collision occurred.

3. Improper testimony by the officer of what the co-defendant told the officer followed immediately by a curative instruction to the jury to disregard the statement was not prejudicial and was harmless error. The officer testified the co-defendant told him the co-defendant was not speeding or racing, but the defendant had revved his engine and could have been trying to race the co-defendant. The court also noted that the defendant testified that the engine revving was due to an engine problem, providing the jury with an alternate explanation for the engine noise.

Vouching for witness.

The defendant asserted the officer’s statements about the eyewitnesses’ accounts were consistent and corroborated by other evidence was improper vouching. Vouching for a witness’s credibility by another witness or the prosecutor’s personal belief on another witness’s credibility infringes on the trier of fact’s role to determine the credibility of a witness. (Par. 20, citations omitted.). An officer’s explanation of the investigative procedure he followed, including collecting and comparing witnesses’ statements, however, is not improper vouching. (Par. 20, citation omitted.).

The court on appeal held that testimony by the officer that the witness’s statements were corroborated by the video and by statements of other witnesses was not impermissible witness vouching. The court noted the officer did not give any opinion that the witness accounts were true or false or that he thought the accounts were truthful or credible.

Speed estimate by lay witnesses.

Evid.R. 701 permits opinion testimony from lay witnesses when the opinion is

1) rationally based on the perception of the witness and 2) helpful to a clear understanding of the witness' testimony or the determination of a fact in issue. The court explained “the distinction between lay and expert witness opinion testimony is that lay testimony 'results from a process of reasoning familiar in everyday life,' while expert testimony 'results from a process of reasoning which can be mastered only by specialists in the field.'" State v. McKee, 2001- Ohio 41, fn2. (Par. 29).

As a general rule, a lay witness may give an opinion on matters they have actually observed 'such as the speed that an automobile was traveling * * *.'" State v. Urbina, 2016-Ohio-7009 (10th Dist.), quoting Urbana ex rel. Newlin v. Downing, 43 Ohio St.3d 109 (1989). (Par. 32). The court also noted the jury saw the video showing the defendant going faster than the flow of traffic, which permitted the jury to assess the validity of the witnesses’ opinions. In this case the court also found any speed estimates by the eyewitnesses, if improper, was harmless error because the estimates were consistent with the opinion by the expert witnesses.

Medical records and blood/alcohol level in OVI case.

State v. Burson, 2025-Ohio-499 (12^th. Dist.). An order overruling motion to suppress and convictions for OVI, repeat OVI offender specification, failure to comply with an order or signal of a police officer, and resisting arrest were affirmed.

Reasonable basis for stop.¹

The officer responded to a bar on New Year’s Eve where the defendant was revving his engine and doing burnouts in front of people in the gravel parking lot. When the officer arrived, the defendant fled in his car, then leaving his car to continue to run through the wood from the police, and eventually jumping into a freezing creek. The court held the officer had a reasonable and articulable suspicion to conduct an investigative stop of the defendant’s vehicle for reckless operation in violation of R.C. 4511.20(A). (Par. 18, citing State v. Burris, 2008-Ohio-2168 (5th Dist. which found reasonable suspicion to stop car for reckless operation after witnessing burnout in gravel parking lot to the paved road.). 

Motion to suppress.

After being taken out of the water, the defendant went directly to the hospital for hypothermia treatment. The police obtained the defendant’s medical records through R.C. 2317.02(B)(2), instead of a search warrant. The medical record showed the defendant’s blood/alcohol level was above .08. The trial court denied the motion to suppress the medical records obtained by the statute instead of a search warrant based on the good-faith exception to the exclusionary rule.

On appeal, the court held the blood/alcohol results were immaterial, and therefore, not grounds for reversal. The defendant was charged with R.C. 4511.19(A)(1)(a) [operating a vehicle under the influence] and R.C. 4511.19(A)(2)[operating a vehicle under the influence with a prior refusal]. Neither offense required the state to prove the defendant's blood/alcohol content was above any prohibited blood alcohol/level. (Par. 25). The court noted the evidence presented at trial included the defendant stumbling and unable to stay upright as he fled from the police on foot through the woods, a "very overwhelming" odor of alcoholic beverage, an empty beer can, several unopened cans of beer, an empty shot glass with fresh liquor residue during the subsequent inventory search of the vehicle, and jumping into the water on a freezing winter night, was sufficient evidence to prove the defendant was under the influence without any reference to his blood/alcohol level. As such, regardless of the trial court’s decision on the motion to suppress, there was sufficient evidence of impairment. (Par. 25).

Author’s note: R.C. 2317.022 contains a form for the police officer to obtain the medical records. While there is no dispute that R.C. 2317.02 waives the physician/patient privilege in criminal actions, the issue is whether this statutory procedure preempts a search warrant requirement by waiving a defendant’s reasonable expectation of privacy.

One of the critical issues is the amount of information in a defendant’s medical records that exceed the presence and amount of alcohol, medication, and/or drugs of abuse in the defendant’s system. While a subpoena is often issued without judicial review, a search warrant determines whether there is probable cause for release of the medical records, and if so, may limit the scope of the records obtained.

To date the following Ohio appellate districts have held that a search warrant, rather than a subpoena or the statutory procedure in R.C. 2317.02 is required to obtain a defendant’s medical records and blood results in an OVI case.

Search warrant required

1^st. Dist. State v. Eads, 2020-Ohio-2805 (1^st. Dist.)

3^rd. Dist. State v. Little, 2014-Ohio-4871 (3^rd. Dist.) and State v. Clark, 2014-Ohio-4873 (3^rd. Dist.).

5^th. Dist. State v. Saunders, 2017-Ohio-7348 (5^th. Dist.)

6^th. Dist. State v. Helper, 2016-Ohio-2662 (6^th. Dist.)

9^th. Dist. State v. Gubanich, 2022-Ohio-2815 (9^th. Dist.).

10^th. Dist. State v. Rogers. 2023-Ohio-2749, (10^th Dist.).

Search Warrant not required

8^th. Dist. Cleveland v. Khamies, 2023-Ohio-812 (8^th. Dist.) Cuyahoga.²

Unclear if search warrant required.

2^nd. Dist. State v. Smith, 2019-Ohio-4706 (2d. Dist.). (Medical records were obtained by R.C. 2317.022, but prosecutor went back and obtained the same records with a search warrant.)

12^th. Dist. State v. Perry, 2017-Ohio-7214 (12^th. Dist.). (Search warrant issue raised to obtain medical records, but not decided, finding the issue was moot due to defendant’s no contest plea to R.C. 4511.19(A)(1)(a) charge and specific blood/alcohol level not applicable.)

Notwithstanding the split of appellate court authority, to date there has been no decision directly on the constitutionality of R.C. 2317.02 by the Fourth Amendment, although it has been raised in some cases.

Medical marijuana and community control supervision.

State v. Holling, 2025-Ohio-385 (5^th. Dist.). Revocation of community control supervision was affirmed. The defendant was on probation for aggravated possession of drugs conviction. After numerous nonappearances and failure to comply with drug treatment, the defendant’s probation term was extended. Although the terms of probation included no consumption of drugs or alcohol, the defendant sought permission to use medical marijuana. The request was denied, but the court directed the defendant to forward any medical marijuana information to the court for a final determination. (Par.14). No appeal was taken from this order. After further violations, including failure to maintain sobriety, and complete treatment, community control supervision was revoked and the prison sentence was imposed.

Clerical error.

The trial court’s judgment entry mistakenly stated the defendant stipulated to the probation violation and waived an evidentiary hearing although the record clearly showed the trial court held the evidentiary hearing and the defendant did not stipulate to violations. (Par. 29). The defendant did not challenge the court’s findings of probation violation. Therefore, the misstatement in the judgment entry was a clerical error. The appellate court noted “Clerical errors do not involve a legal decision or judgment. . .” and not grounds for reversal. (Par. 30). Instead, a clerical error may be corrected by judgment entry through Criminal Rule 36 without remand or an additional hearing.

Extension of probation term.

Upon prior notice of violation, the trial court extended the probation term for one year by journal entry without a hearing. The court of appeals found that the prior court order extending probation was not appealed and therefore, could not be raised in a subsequent appeal. (Par. 28, relying on State v. Carpenter, 2009-Ohio-4759 (5^th. Dist.).

State v. Williams, 2025-Ohio-461 (8^th. Dist.). Community control supervision revocation for medical marijuana use was affirmed. The defendant had tested positive for marijuana after being denied the use of medical marijuana by the trial court as a condition of probation. The defendant’s medical records indicated the defendant had received permission or recommendation for medical marijuana use.

R.C 3796.22 (C)(1)provides a registered patient shall not be subject to arrest or criminal prosecution for obtaining, using, or possessing medical marijuana. The defendant argued probation revocation for medical marijuana use was prohibited by this statute. Affirming the probation revocation, the appellate court noted the defendant had not directly appealed his sentence, including the conditions of probation and therefore, the validity of the condition was barred by res judicata.

Addressing the merits of the defendant’s argument, the court distinguished between a trial and a probation revocation hearing. The court held the defendant was not being prosecuted for possession of medical marijuana, but instead, violating community control supervision conditions. Although the court did not directly address the issue, the decision implied a probation violation for medical marijuana was not a prosecution within the meaning of R.C. 3796.22(C)(1).

Author’s note: The language of R.C. 3796.22(C) differs from more restrictive medical marijuana statutes in other states. For example, in People v. Thua, 336 Mich. App. 35 (2021), the court held a trial court could not prohibit the use of medical marijuana as a condition of probation when the marijuana is used in compliance with the Michigan Medical Marijuana Act. (MMMA, MCL 333.26421 et seq.) The decision in Thue was based on the statutory language of two specific passages in the MMMA. First, the MMMA stated “all other acts or parts of acts inconsistent with this act do not apply with the medical use of marijuana as provided for by this act.” The court found that the language in the MMMA preempted any conflicting statute unless a registered qualifying patient lost immunity because of a failure to act in accordance with the MMMA.

Second, the Michigan statute provided for protection from arrest, prosecution, or penalty of any kind. (emphasis added). The court reasoned that as probation was a privilege, revocation of probation was a penalty under the language of the MMMA. “In other words, a condition of probation prohibiting the use of medical marijuana that is otherwise used in accordance with the MMMA is directly in conflict with the MMMA and impermissible.” 336 Mich. App. at 47. Other states with similarly worded statutes have also found that properly used medical marijuana could not banned or regulated as a condition of probation.

Failure to Comply with lawful police order.

State v. Whitt, 2025-Ohio-424 (3d. Dist.). Convictions for failure to comply with an order or signal of a police officer, aggravated possession of drugs, and tampering with evidence were affirmed. While on patrol, the officer recognized the defendant driving a pickup truck, and ran a record check to confirm the defendant was driving with a suspended license. The defendant initially responded to the officer’s overhead lights by slowing down, but then sped away. The officer gave chase, with both cars going forty-five miles per hour on a residential street and gravel alleyway. A blue latex glove with one finger missing was located in the defendant’s truck. Near the truck the officer found the missing glove finder that was tied off and containing what was later identified as 0.69 grams of methamphetamine.

Failure to comply

1. Lawful order.

On appeal the defendant challenged the sufficiency of evidence of the lawfulness of the officer’s order to stop because a certified copy of the defendant’s driving record was needed to show the defendant had a suspended license. The court held, however, that a certified copy of the defendant’s driving record was one, but not the only way to prove the defendant’s license was suspended. In this case the officer testified he had known the defendant for years and ran a record search of the defendant’s name at the time to determine that the defendant did not have a valid license. The court held this information from an official computer database, as well as the absence of any evidence that the defendant’s license was valid, was sufficient to show the officer had a legal basis to initiate a traffic stop and that his order to stop was lawful. (Par. 15).

2. Proof of flight.

The evidence at the trial, by both the officer’s testimony and the dashboard video, showed the defendant attempt to speed away from the officer. The officer testified that as he followed the defendant, he saw the defendant looking into the rearview mirror showing he was aware of the officer behind him. (Par. 18). The court found the evidence was sufficient to support the conviction.

Drug possession.

The officer testified that just prior to the end of the chase, he saw something thrown from the driver’s side window which could also be seen from the dashboard video. The glove finger containing the drugs was located about forty feet from the stopped truck. Photos of the glove with the missing finger and the separate finger matched as “a direct fit.” (Par. 25). The court also noted any absence of fingerprint analysis in a case does not render a conviction against the manifest weight of the evidence. (Par. 24, relying on State v. Reed, 2024-Ohio-4838, ¶ 51 (3d Dist.). Reviewing all of the evidence, the court found sufficient evidence in the record to show the defendant’s possession of the drugs.

Tampering with evidence.

R.C. 2921.12(A)(1) prohibits altering, destroying, concealing, or removing evidence when the defendant knows that an official proceeding or investigation was in progress. The defendant disputed that there was an investigation in progress when the drugs were thrown out of the truck as he was only stopped for a suspended license offense. The likelihood of an official investigation is measured at the time of the act of the alleged tampering. State v. Straley, 139 Ohio St. 3d 339, 2014-Ohio-2139. The defendant’s knowledge of a likely investigation, not the officer’s basis for initialing the stop, is the relevant factor. State v. Campbell, 2019-Ohio-583 (9th Dist.) 

The court in Whitt cited State v. Johnson, 2023-Ohio-30 (6th Dist.) which also involved the defendant slowing down for the officer, then rapidly accelerating and throwing an object from the vehicle window.) The court in Johnson noted the defendant would not have thrown the drugs from the vehicle while trying to elude police if he did not believe an investigation was imminent. (Par. 33-34). In the present case the court held the officer came to a reasonable conclusion that the defendant was engaged in criminal activities aside from driving with a suspended license. (Par. 32, 35).

Mandatory license suspension.

State v. Jackson, 2025-Ohio-479 (5^th. Dist.). A conviction for failure to comply with police officer’s order was reversed on mandatory driver’s license suspension. The defendant was convicted after guilty plea of failure to comply with an order or signal of a police officer in violation of R.C. 2921.331(A), a first degree misdemeanor. The sentence included a fine, suspended incarceration, and a one year license suspension.

The defendant had a prior conviction for failure to comply. R.C 2921.331(E) requires a class one (lifetime) driver’s license suspension under R.C. 4511.02(A)(1). The court held the lifetime license suspension was mandatory, and therefore, the sentence was reversed as contrary to law.

Author’s Note: Regarding the license suspension, R.C. 2921.331(E) requires the lifetime license suspension when the defendant “previously has been found guilty of an offense under this section.”  Unlike an OVI offense in which the penalties are increased with a prior conviction under R.C. 4511.19(A) “or an equivalent offense,” which would include a municipal ordinance under R.C. 4511.181(A), R.C. 2921.311(E) does not contain comparable language and would appear to limit the lifetime suspension to a prior state law conviction.

Procedural issues.

1. Speedy trial.

State v. Adams, 2025-Ohio-483 (2d. Dist.). Dismissal of OVI charge on speedy trial grounds was affirmed.

Untimely motion to suppress.

Although a motion to suppress is required under Criminal Rule 12 to be filed the earlier of thirty-five (35) days after arraignment or seven (7) days before trial, a trial court has discretion to permit an untimely motion to suppress. The failure to comply with the time limits may result in waiver of a suppression issue. The court was not deprived of jurisdiction to extend the time limits or accept an untimely motion. I n the present case the prosecution was not prejudiced by the late filed motion because the court ultimately overruled the suppression motion. (Par. 10).

Speedy trial and delay in court order.

The defendant filed the motion to suppress on November 30, 2022 and after the prosecutor filed a brief in opposition, an evidentiary hearing was conducted on January 10, 2023. The trial court overruled the motion on July 23, 2024.

When determining a constitutional speedy trial violation, the Court in Barker v. Wingo, 407 U.S. 514, 530 (1972). set out a four part balancing tests: 1) length of delay, 2) reason for the delay, 3) defendant's assertion of his right, and 4) prejudice to the defendant. R.C. 2945.71 et seq sets out a statutory framework to implement and enforce this constitutional protection. (Par. 15, citations omitted.). Once a defendant establishes a prima facie case for a speedy-trial violation by demonstrating that the trial was held past the time limit set by statute, the burden then shifts to the State to show that some event tolled speedy-trial time. (Par. 16, citations omitted.).

The issue raised in this case was whether the suppression motion tolled speedy-trial time during the 513 days between the hearing and the trial court's decision. Although a defendant’s motion will generally toll the speedy trial time, the trial court has an obligation to resolve the motion within a reasonable time. (Par. 18, citing State v. Kendall, 2025-Ohio-10 (2d. Dist.). Reasonableness includes the complexity of the issues raised, time constraints due to the judge’s docket, and other factors set out on the record to show the delay was necessary. (Par. 19). When, however, the delay is not reasonable, the delay is not chargeable to the defendant. Allowing a defendant's motion to toll speedy-trial time without limit would undermine the policy behind the speedy-trial statute. State v. Owens, 2d. Dist. Montgomery, No.13054, June 26, 1992.) (Par. 19).

In the present case the court found the motion challenging the field sobriety tests was not complex to justify the delay. Moreover, the trial court did not journalize any reasons for the excessive delay. (Par. 21). As such, the defendant was entitled to discharge on speedy trial grounds.

Author’s Note: Superintendence Rule 40(A) (2) & (3) require a trial court to decide a case within 90 days of when the case was submitted for determination and on a motion within 120 days after the motion was filed. Despite the mandatory “shall” in the rule, Superintendence Rule 40 is a laudatory goal and does not give rise to any enforceable right in mandamus or procedendo. State ex. rel. Culgan v. Collier, 2013-Ohio-436. When a decision cannot be determined within the time set out by Superintendence Rule 40, the trial court should make a record showing the reasons for the delay.

2. Service of license suspension order.

Taylor v. Ohio Department of Public Safety, 2025-Ohio-482 (5^th. Dist.). Dismissal for lack of subject matter jurisdiction of an administrative appeal from a commercial driver’s license (CDL) suspension issued by the Ohio Department Public Safety, Bureau of Motor Vehicles (BMV) was affirmed.

The notice of suspension from the BMV due to the defendant’s failure to appear in court, and the notice of CDL disqualification from the BMV were sent to the defendant by regular mail and returned as "NOT DELIVERABLE AS ADDRESSED/UNABLE TO FORWARD." The notice of disqualification informed the defendant of a right to a hearing to dispute the order of CDL disqualification if filed within thirty days. Due to the lack of notice the defendant did not file the hearing request within the time limit and the order of disqualification went into effect. On appeal from the BMV, the common pleas court held the appeal to the BMV was not timely and dismissed the appeal for lack of jurisdiction.

On appeal to the court of appeals, the defendant asserted the BMV sent the notices of suspension and disqualification to an incorrect address using regular mail.

Method of service.

For a license suspension by a state administrative agency, R.C. 119.07 requires notice from and an opportunity for a hearing to dispute the license suspension. R.C. 119.05 sets out the method of service which for this case was registered mail.³ R.C. 119.062 exempts the BMV from this notice requirement, instead permitting the BMV to establish its own notice procedure under R.C. 4501.022. Ohio Adm.Code 4501:1-10-01(A) provides for written notice of any order revoking, canceling, or suspending a commercial driver's license by regular mail sent to the person at the person's last known address as determined in accordance with this rule. (Emphasis added.).⁴ The court found that regular, not registered mail was required for valid service of the notice.

Last known address

The defendant asserted the notice was sent to an improper address on his driver’s license because the BMV did not update his current address after receiving notice of a different address from a traffic case in the municipal court. The court of appeals noted, however, that R.C. 4506.14(D) requires a CDL holder, between renewal, to notify the BMV in writing of a change of address within ten days of the change.⁵ The appellate court held the defendant failed to notify the BMV of the change of address and the BMV properly sent the final order of disqualification to the last known address on file . (Par. 16). The court held the defendant could not use his failure to do that which he was statutorily required to do as a means to circumvent the timely filing of his administrative appeal.

3. Restitution limit and Marsys’ Law.

State v. Jing Yang, 2025-Ohio-691 (5^th. Dist.). A restitution order in excess of statutory monetary cap in an OVI case was affirmed. While impaired, the defendant struck an Ohio Highway Patrol car on the side of the road. The defendant plead no contest to the OVI charge, found guilty with the case passed for a hearing on restitution. The damage to the highway patrol car was $26,847.60. $10,000, the limits of the defendant’s insurance policy was applied to the damage, leaving an unpaid balance of $16,847.60. The court imposed restitution of $16,847.60 and part of the sentence in this case.

Statutory damage cap.

For an OVI offense, R.C. 4511.19(G)(7) bars restitution if the defendant was insured at the time of the incident and caps the amount of restitution to $5,000 if the defendant was not insured.⁶ The defendant argued on appeal that he was insured at the time of the collision and therefore, the court could not award restitution even though the entire amount of the damage was not covered by the insurance. In rejecting this argument, the appellate court noted a victim is constitutionally guaranteed “full and timely” restitution. Ohio. Const. Art. I, Sec. 10a(A)(7). (Par. 9).

Article I, Section 10a(E) provides "All provisions of this section shall be self-executing and severable, and shall supersede all conflicting state laws." The court found the Ohio Constitution, Article I, Section 10a(A)(7) right of full and timely restitution prevailed over the restitution limits contained in R.C. 4511.19(G)(7). See also, Cleveland v. Fuller, 2023-Ohio-1669 (8th Dist.) which held a comparable municipal ordinance limiting the amount of restitution in an OVI offense was in conflict with Art. I, Sec. 10a(A)(7). (Par. 14). The court upheld the restitution order of $16,847.60.

Highway Patrol/State of Ohio as victim.

The defendant argued the State of Ohio was not a victim under Marsy’s law. In City of Centerville v. Knab, 2020-Ohio-5219, the court held a municipality was not a victim entitled to restitution under Marsy’s Law. The Court’s holding was limited to restitution in the performance of a city’s governmental services and expressly reserved issue in which the governmental entity incurred damage from the criminal act, such as embezzlement or vandalism.

In this case the court found the Highway Patrol car was not dispatched to investigate the defendant’s impaired driving, but was parked on the side of the road when hit by the defendant. (Par. 13). The expenses incurred in this case were not due to the performance of a governmental function, but for damages caused by the defendant’s criminal conduct and fit within the exception set out in Knabb. (Par. 13, citing State v. Turner, 2018-Ohio-2860 (2d. Dist.).

Author’s Note: The significance of this case, while not addressed by the court on appeal, is the affirmance of a monetary amount of restitution by a municipal court above the municipal court’s $15,000 monetary jurisdiction. R.C.. Following the same logic as the statutory restitution cap, a municipal or county court’s monetary jurisdiction is set by statute, and therefore subject to a victim’s constitutional right to full restitution, regardless of the amount. “No lengthy citation of authority is necessary to support the general proposition that when a statute conflicts with a constitutional provision, the latter must prevail.” In re Black, 36 Ohio St. 2d 124 (1973). Thus, while a municipal or county court’s civil monetary jurisdiction is limited by statute to $15,000, this limit would not apply to a restitution order in a criminal case. See also, State v. Kettering, 2025-Ohio-54 (5^th. Dist.) upholding restitution order of $18,000 from a municipal court. The issue in Kettering was the accrual of interest from the certificate of judgment issued by the trial court.

Traffic stops.

State v. Bond, 2025-Ohio-360 (5^th. Dist). An order overruling a motion to suppress and convictions for drug possession, trafficking, and participation in a gang were affirmed. While on duty in a high crime area, the officer saw a vehicle driving evasively at a high speed. The windows were heavily tinted. The officer turned around, relocated the vehicle, and saw the car drive through a stop sign. The officer turned on lights and siren, but the defendant did not immediately stop. The defendant pulled into a gas station and lowered the window about six inches.

The officer did not approach the car out of safety, but instead called for backup and used his public address system to order the occupants out of the car. Although there was more than one person in the car, the officer could not see into the car to know the number of occupants. The occupants refused to comply with the order and the vehicles remained stationary for about six minutes. At that time two people got out of the car and after an additional three minutes the last person also exited the car. While waiting for the third person to get out of the car, the canine arrived. A “walk around’ disclosed a positive hit and large quantities of methamphetamine, fentanyl, and crack cocaine behind the dashboard as well as burnt marijuana in plain view. (Par. 10).

Traffic stop and duration.

The court found that the traffic violations observed by the officer, including the stop sign violation, were valid grounds to stop the vehicle. The duration of the stop was extended due to the defendant’s conduct by refusing to get out of the car.⁷ The dog arrived approximately six and one half minutes after the stop while the final person was still in the car. The court found the traffic stop was not delayed or expanded in order to bring a canine to the scene and the occupants, including the defendant, contributed to the delay in the traffic citation procedure. (Par. 29).

The defendant challenged the canine walk around asserting the touching of the vehicle by the officer and the dog were improper searches under the Fourth Amendment. The use of a drug detection dog does not constitute a "search" and “an officer needs no suspicion or cause to run the dog around the stopped vehicle if he or she does so contemporaneously with the legitimate activities associated with the traffic violation. Id. " (Par.34, citing Illinois v. Caballes, 543 U.S. 405 (2005).

In this case the officer testified that the dog was trained for both safety and drug detection purposes and was initially summoned for officer protection. Once the area was secured with backup officers, the officer rattled the door handle to shift the dog’s attention to drug detection and in response, the dog jumped up and put his two front paws on the car door and his snout to the window. Reviewing both the officer’s testimony and the video from the scene, the court found that no part of the dog entered the cabin of the car and therefore, did not improperly invade a constitutionally protected area. The court rejected the analogy to Taylor v. City of Saginaw, 922 F.3d 328 (6th. Cir. 2019), in which the court held a chalk mark on a tire for parking enforcement purposes was a Fourth Amendment violation. The court in Taylor held the chalking was done to legally parked cars to obtain information without probable cause or any individualized suspicion of wrongdoing. 922 F.3d at 344. In the present case the court found the officer’s touching the door handle was to redirect the dog’s attention, not to conduct a search. (Par. 40).

Canine reliability

Evidence of a dog's satisfactory performance in a certification or training program can itself provide sufficient reason to trust his alert to drugs. Florida v. Harris, 568 U.S. 237, 247 (2012). A defendant, however, has the right to challenge evidence of the dog's reliability by either cross-examining the testifying officer or introducing his own fact or expert witnesses. The Court in Harris further stated, "[i]f a bona fide organization has certified a dog after testing his reliability in a controlled setting, a court can presume (subject to any conflicting evidence offered) that the dog's alert provides probable cause to search.” 568 U.S. at 246-47.

In the present case the defendant asserted the dog was unreliable because the officer testified the dog could not distinguish between marijuana and hemp. The court found that because there was no hemp found in the car, the dog’s inability to distinguish between the two was irrelevant. (Par. 47).

State v. Hood, 2025-Ohio-422 (3d. Dist.). An order overruling a motion to suppress and convictions for drug possession and weapons offenses were affirmed. The defendant was stopped for a “significantly cracked windshield” which led to the discovery of the drugs and weapons in the vehicle.

Motion to suppress.

1. reasonable suspicion or probable cause.

A substantially cracked windshield that impairs the driver's vision is a violation of failure to maintain a safe vehicle. R.C. 4513.02(A).⁸ (Par. 14, citation omitted.). As a traffic code violation, an officer has reasonable and articulable suspicion to stop a car when the crack is large or substantial to affect the operation’s safety. The damage in this case was more than twenty cracks extending from the impact point to various edges of the windshield and obstructed the driver’s view when making a right hand turn.⁹ (Par. 12, 15). The officer's testimony alone was sufficient to establish reasonable articulable suspicion for a stop." State v. McClellan, 2010-Ohio-314 (3d Dist.). In this case photos were also introduced at the hearing to show the extensive nature of the cracked window. The court found there was competent, credible evidence supporting the trial court's determination of reasonable suspicion to stop the defendant based on a violation of R.C. 4513.02.

2. Laboratory report with expired notary public's commission.

In this case the report of the forensic scientist who analyzed the cocaine showed an expired notary commission. The forensic scientist stated in his testimony that the officer’s notary commission was not expired. The defendant claimed the statement was inadmissible hearsay and in violation of the Confrontation Clause of the Sixt Amendment. Also, due to the lack of valid notarization, the forensic scientist’s report should not have been admitted into evidence.

The report was admitted under R.C. 2925.51(A), which is an exception to the hearsay rules of evidence. State v. Hudson, 2002-Ohio-1408 (8^th. Dist.). The court found the report met all of the requirements of R.C. 2925.51, including the content, identity, and weight or the existence and number of unit dosages of the substance. Under R.C. 2925.51 the signer is required to state his/her education, attest that scientifically accepted tests were performed with due caution, and that the evidence was handled by accepted procedures. (Par. 31). A report that meets these requirements is prima facie evidence of the content, weight , and identity of the controlled substance unless the defense attorney demands the testimony of the person signing the report.

In the present case the forensic scientist who did the analysis and prepared the report testified at the trial. The court found the scientist established the report’s authenticity, and therefore, the notary issue “had no bearing on the admissibility of the report.” (Par. 33, citing State v. Hudson, 2002-Ohio-1408 (8^th. Dist.). The question of the report’s admissibility was based on the testimony of the person who performed the analysis and prepared the report, not the notary. For the same reasons, the court found that the defendant was afforded the opportunity to confront the scientist who prepared the report and question him on about key facts of the State's case regarding the cocaine. (Par. 37).

State v. Reuschling, 2025-Ohio-516 (11^th. Dist.). Vehicle windows that were darkened past the legal level was valid basis for a traffic stop. The issue in this case was not the basis for the stop but whether the duration of the top was extended beyond the time necessary to address the underlying traffic violation.

Dealing with sovereign citizens.

State of Ohio/ City of Toledo v. Smith, 2025-Ohio-686 (6^th. Dist.). Convictions of sovereign citizen of failure to stop at a stop sign, failure to display license plates, and failure to display a license were affirmed. The officer saw the defendant drive through a stop sign. As he pulled the defendant over, the officer noticed a piece of cardboard with reference to UCC 1-308 for the rear license plate. The defendant also refused to provide his driver’s license to the officer. At the initial appearance the defendant refused to enter a plea, so the trial court entered a not guilty plea on the defendant’s behalf in accordance with Criminal Rule 11(A) for all charges.

On appeal the defendant asserted he was a living soul, separate from and a beneficiary of the fictional entity and because he was not operating under commerce, there was no contract by which he agreed to be subject to the laws and jurisdiction of the state of Ohio. (Par. 8). In affirming the convictions, the appellate court found the defendant’s assertions were consistent with the sovereign-citizen challenges to a trial court's jurisdiction in criminal cases that "Ohio courts of appeals have routinely rejected as baseless.” (Par. 9, citing Furr v. Ruehlman, 2023-Ohio-481). The court also acknowledged State v. Farley, 2013-Ohio-5517 (5^th. Dist.), holding:

1. "The UCC 'has no bearing on criminal subject matter jurisdiction.” and

2. No contract between the criminal defendant and the prosecuting jurisdiction is necessary for a trial court to obtain personal jurisdiction over the defendant.

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.

• 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.

• 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.