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Traffic Signals — March 2025

TRAFFIC SIGNALS NEWSLETTER

Dear Colleagues,April 8, 2025

This newsletter sets out a summary of Ohio court decisions in March, 2025, concerning impaired driving, alcohol and drugs of abuse, and other procedural related issues that may be raised in these cases. 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

Impaired driving with drugs.

State v. Petersen, 2025-Ohio-877 (9^th. Dist.). OVI conviction was affirmed. (2-1 decision). The defendant drove fast across three lanes of an interstate highway, striking another car from behind and causing the other car to spin around two times, with the defendant going off the road into a ditch. The other driver called out to check the defendant’s condition, but he remained in the car, slumped over without moving. The officer testified that when he arrived at the scene he found the defendant still in the car, reclined back but still holding the steering wheel. The defendant’s eyes were open, but he did not respond to the officer. The officer testified the defendant’s pupils were constricted, consistent with drug use, and his skin was “blueish, purplish, and pale.”

When the ambulance arrived the defendant was not responsive. NARCAN was administered by a paramedic and the defendant immediately responded. The defendant told the officer he had a seizure and was not using drugs. Both the officer and the paramedic testified based on their training and observations that the defendant was under the influence of opioids. (Par. 10, 13, 25).

The defendant was cited with OVI and after a jury trial, found guilty. The defendant asserted on appeal the verdict was not supported by the evidence. On appeal, the court noted a lay witness without special qualifications can give an opinion on whether a person is intoxicated based on the witness’s perception and previous experience observing intoxicated people. (Par. 19, citation omitted.). With respect to a specific drug, both the officer and the paramedic testified to their qualifications and experience with opioid overdoses. ¹

The paramedic testified that the signs of an opioid or narcotic overdose are pinpoint pupils, decreased respiratory drive, unresponsiveness, and unconsciousness. He explained how the defendant reacted to NARCAN by immediately being able to breath on his own and that if NARCAN is administered to someone who is not overdosing on an opioid, it has no effect on the person. (Par. 12-13). He further distinguished an opioid overdose from a seizure, which the defendant alleged he was experiencing, in that a seizure would not cause pinpoint pupils or unresponsiveness. (Par. 25). His opinion also included track marks on the defendant’s arms indicating intravenous drug use.

After asking if drugs would show up after a couple of days, the defendant refused all medical care and chemical tests. The court noted the refusal was probative of his consciousness of guilt. (Par. 40). Reviewing all of the evidence, the court found the conviction for driving under the influence of opioids was supported by the evidence.

The dissent asserted the evidence failed to establish a nexus between the defendant’s allegedly impaired condition and a drug of abuse. (Par. 34). The dissent cited State v. Collins, 2012-Ohio-2236 (9^th. Dist), in which an OVI conviction was reversed for lack of proof of impairment by a drug of abuse.² With neither drugs nor drug paraphernalia located on the defendant or in his car, the dissent stated the testimony of the officer and the paramedic were not sufficient to support the conviction.

State v. Harris, 2025-Ohio-825, (4^th. Dist.). Felony OVI conviction affirmed for driving under the influence of alcohol and/or drugs with three or more priors in the past ten years. This case arises out of a single car collision with a guardrail. The emergency squad was present when the officer arrived at the scene. The officer testified at both the suppression hearing and trial that he smelled alcohol from the defendant’s breath and that the defendant’s eyes were red and glassy, and his speech was very slow and mumbling. The officer performed the horizonal gaze nystagmus test at the scene, which the defendant did not pass. The officer testified he conducted a premedical screening and determined that he did not have any injuries that would invalidate the HGN test. The remaining field sobriety tests were not performed due to the defendant being transported to the hospital. The officer also testified he smelled marijuana and the defendant told him he had a medical marijuana card.

The paramedic at the scene testified at trial for the defense that he did not recall an odor of alcohol and that the defendant denied consuming any drugs or alcohol. The defendant asserted on appeal his counsel was ineffective for failing to call the paramedic as a witness for the suppression hearing. To prove ineffective assistance of counsel, the defendant "must show 1) deficient performance by counsel, i.e., performance falling below an objective standard of reasonable representation, and 2) prejudice, i.e., a reasonable probability that, but for counsel's errors, the proceeding's result would have been different."  (Par. 29, citations omitted.).

The appellate court noted that while some of the paramedic's testimony may have been inconsistent with the officer’s observations the officer made other observations that supported his suspicion that the defendant could have been under the influence of alcohol. (Par. 39.). The court also distinguished the officer who was making observations to interdict drivers who were under the influence of alcohol and drugs, and the paramedic who was observing the patient for treatment purposes. “While their powers of observation may have been the same or similar, they were looking for different things.” (Par. 40.).

The court found from the totality of the circumstances viewed through the eyes of the police officer at the scene, there was probable cause for the arrest. Other factors include the single car collision itself, which erratic driving could be inferred. (Par. 35, citations omitted.). A difference by the paramedic of some of the officer’s observations was not sufficient to show the officer did not have probable cause for the arrest. It was also unclear whether the trial court would have afforded the paramedic’s testimony similar weight to that of the officer's, given the officer's greater training in OVI detection. (Par. 40). As such, the failure to call the paramedic as a witness at the suppression hearing did not show the suppression hearing would have turned out differently to establish ineffectiveness of counsel.

Validity of pre se marijuana impaired driving.

State v. Duncan, 2025-Ohio-1153 (1^st. Dist.). An order overruling motion to suppress and OVI conviction were affirmed. The defendant was stopped at a sobriety checkpoint. The officer smelled alcohol on the defendant’s breath and the defendant admitted having a small amount of wine. The officer also observed the defendant appeared disoriented and had an abnormal speech pattern with delayed responses and interjection of irrelevant information. The defendant was asked to get out of the car to perform field sobriety tests. During the HGN test the defendant complained about nearby stadium lights and the officer told the defendant to face a different direction. Based on the results of the horizontal gaze nystagmus, walk and turn, and one leg stand test, the defendant was arrested for OVI. The defendant agreed to a urine test which showed a level of marihuana metabolites over the legal limit, R.C. 4511.19(A)(1)(j)(viii)(II).

The defendant was initially charged with R.C. 4511.19(A)(1)(a), operating a vehicle under the influence. After a hearing in which the motion to suppress was overruled, a new citation was issued with a violation for operating a vehicle with a prohibited marijuana level. The defendant filed a motion to dismiss the new charge asserting no evidence of impairment. At the hearing the defendant’s expert testified there was no correlation between THCA levels and impairment. The trial court denied the motion on both equal protection and due process grounds.

On the motion to suppress, the appellate court found the field sobriety tests were performed in substantial compliance with the NHTSA Manual. The stadium lights did not impact the HGN results as the lights were not flashing or strobe lights and the test was restarted after the defendant was told to look away from the lights. Reviewing the totality of the circumstances, the court found the smell on the defendant’s breath, the officer’s observations of the defendant, and the field sobriety test results were probable cause to support the defendant’s arrest.

Regarding the motion to dismiss, the court applied a rational basis test, stating a statute will be upheld if it bears a rational relationship to a legitimate governmental interest. (Par. 32, citations omitted.). Applying this test, the court must 1) identify a valid state interest, and 2)

determine whether the method or means by which the state has chosen to advance that interest is rational. (Par. 32, citations omitted.).

The state has a legitimate interest in highway safety and keeping impaired drivers off the road. State v. Schulz, 2015-Ohio-2252 (12th Dist.), relied on in this case and which also dealt with this issue, noted “the evidence does not demonstrate that there is no rational connection between the statutory marijuana metabolites standard and impairment.” (Par. 35). The court also cited State v. Whelan, 2013-Ohio-1861 (1^st. Dist.), which stated “Unlike some other states, Ohio does not prohibit driving with any amount of a marihuana metabolite in one's body but rather sets certain maximum limits that may not be exceeded.” The court went on to explain the background testimony considered when the General Assembly determined the prohibited marijuana levels to operate a motor vehicle which were consistent with both federal standards and findings by forensic toxicologists. (Par. 36). The court also cited other appellate decisions that have found the marijuana metabolite per se statute, R.C. 4511.19(A)(1)(j)(vii)(II), was not unconstitutional on equal protection or due process grounds. State v. Naylor, 2024-Ohio-1648 (11^th. Dist), State v. Doane, 2020-Ohio-900 (5th Dist.) State v. Topolosky, 2015-Ohio-4963 (10th Dist.). 

Author’s Note: The validity of sobriety checkpoints was upheld in State v. Blackburn, 2d. Dist. Clark, No. 3083 (3/23/1994), citing and relying on Michigan State Police v. Sitz, 496 U.S. 44, (1990), which held a sobriety checkpoint, to which all traffic was subjected, was found not to violate the Fourth Amendment to the United States Constitution.

Blood draw issues.

State v. Benefield, 2025-Ohio-1116 (5^th. Dist.). Convictions for aggravated vehicular homicide, OVI, and driving under suspension affirmed. (2-1 decision). The defendant ran a red light causing a fatal two car collision. The defendant was stopped by the police walking away from the collision. After being transferred to the hospital the defendant refused medical treatment, became combative with the medical staff, and had to be physically restrained to force medication into his IV to be intubated so he could be treated for his injuries. During the process the officer smelled alcohol from the defendant’s breath and timely obtained a search warrant for a blood sample.

The nurse testified she used an already established IV to draw the blood to avoid causing any additional, unnecessary trauma by poking the defendant with another needle. She did not recall if an alcohol antiseptic was used when the original IV was inserted. (Par. 7). The blood contained 0.173 grams by weight of alcohol per 100 ml of whole blood. It also showed 111.32 nanograms per milliliter of THC, 81.12 nanograms per milliliter of fentanyl, 49.79 nanograms per milliliter of midazolam, and 675.34 nanograms per milliliter of Lorazepam.

The defendant filed a motion to motion to suppress generally asserting the blood sample was not collected, handled, transported, or analyzed in compliance with R.C. 4511.19 and with the Ohio Department of Health rules regarding chemical tests. The motion did not set out any specific allegations of non-compliance. Three weeks after the suppression hearing the defendant filed a supplemental motion to suppress setting out more specific arguments to suppress the blood results. After the trial court overruled the motion to suppress, the defendant entered pleas of no contest to the three aggravated vehicular homicide charged merged for sentencing, OVI, and driving under a suspended license.

Sufficiency of motion to suppress.

Crim.R. 47 requires all written motions to state with particularity the grounds upon which they are made. The prosecution is only required to present general evidence of substantial compliance with the regulations in response to a motion to suppress that generally raises noncompliance. Specific evidence is not required unless the defendant raises a specific issue in the motion to suppress. State v. Bordeau, 2023-Ohio-2040 (5^th. Dist.). (Par. 23). The defendant is required to raise specific issues of noncompliance in the initial motion. The defendant “is not entitled to a ‘second bite at the apple’ after the prosecution has concluded its arguments and rested its case at the motion to suppress hearing.” (Par. 23).

In the present case the court noted the defendant’s motion to suppress only raised a generalized claim of inadmissibility. The motion identified sections of the Ohio Administrative Code but was devoid of any specificity of any claimed violations. (Par. 22). The court held, based on the defendant’s motion, the prosecution’s evidence demonstrated substantial compliance with R.C. 4511.19(D)(1)(b) and Ohio Administrative Code 3701-53-06 for admissibility.

Compliance with blood draw procedures.

R.C. 4511.19(D)(1)(b) requires compliance with techniques or methods approved by the director of health for admissibility of blood samples in OVI cases. State v. Baker, 2016-Ohio-451. Ohio Adin. Code Sec. 3701-53-06(B) states ,“When collecting a blood sample, an aqueous solution of a non-volatile antiseptic will be used on the skin. No alcohols will be used as a skin antiseptic.”

The defendant asserted that because the nurse who drew the blood was not able to testify to the type of antiseptic that was used when the IV was inserted into the defendant, the blood sample did not meet the requirements of admissibility. Rigid compliance with the Ohio Department of Health regulations is not required as such compliance is not always humanly or realistically possible. (Par. 35). Substantial compliance with the regulations, absent prejudice to the defendant, is sufficient for the admissibility of alcohol and drug tests results. State v. Plummer, 22 Ohio St. 3d 294 (1986).

In the present case the court found under the circumstances including the defendant being uncooperative and need to be physically restrained in order to be docile enough to receive treatment for his injuries, the blood was drawn in substantial compliance with the Department of Health regulations. (Par. 25). The court noted there was no claim of prejudice for any noncompliance. Moreover, there was no evidence that an alcohol antiseptic was used in violation of the regulation, but only it was not known under the rush of the extreme circumstances and the defendant’s behavior.

Dissenting opinion.

The dissenting opinion pointed out that unlike discovery in civil cases, a defendant in a criminal case does not have access to knowledge of facts necessary to particularize how the prosecution might have failed to comply with the administrative rules governing a blood test. Under the circumstances, the dissent found the defendant’s general statement contesting the blood sample and the limited access to information substantially complied with Criminal Rule 47. The dissent also found with no testimony that an alcohol antiseptic was not used when the IV was inserted, there was neither strict nor substantial compliance with the Ohio Department of Health’s regulations for drawing the blood.

Roadside translator.

State v. Abaev, 2025-Ohio-1108 (5^th. Dist.). OVI conviction affirmed. At 1:30 a.m. the officer saw the defendant driving under the speed limit, drive straight through in a turn lane going onto the shoulder of the road and then make a wide right turn going left of center in the process. At the stop the officer discovered the defendant did not speak English. The defendant spoke Uzbek and the officer used the Google Translator app on his phone to communicate with the defendant.

The officer testified to a strong odor of alcohol from the car and the defendant had bloodshot and glassy eyes. The defendant admitted having something to drink in response to the officer’s questions which based on the translation was “one beer four hours ago.” At the officer’s request, the defendant got out of the car for the horizontal gaze nystagmus test. The officer testified he observed six clues, three in each eye, from the HGN test.³ Based on the test results, erratic driving, and the officer’s observations, the defendant was arrested for OVI. The defendant submitted to the breathalyzer, resulting in 0.129 blood/alcohol level. After a hearing on the motion to suppress, the court denied the motion and the defendant entered a no contest plea to the charge.

Reliability of Google translator.

The defendant asserted that the prosecution was required to offer some testimony showing the reliability of Google Translator. In the absence of proof of reliability, the prosecution could not show the HGN instructions were valid and the HGN test results should have been suppressed. On appeal the court noted it may have been preferable for the State to have an interpreter testify regarding the accuracy of the translated instructions. (Par. 15). The court further found, however, from the video and the officer’s testimony of the “near perfect compliance” with the instructions, the accuracy of the translation was supported by circumstantial evidence.

Compliance with NHTSA Standards.

The NHTSA manual states before the test, the tester should ask medical questions to rule out other types of nystagmus and/or medical conditions. Prior to administering the HGN test, the officer did not ask the defendant any medical questions related to his ability to pass the test. The officer testified that answers to medical questions do not change the mechanics of the tests. (Par. 6, 15).

R.C. 4511.194(D)(4)(b) provides the admissibility of roadside field sobriety tests by clear and convincing evidence that the officer administered the test in substantial compliance with the testing standards. “Errors that are excusable under the substantial-compliance standard are characterized as 'minor procedural deviations.” State v. Burnside, 2003-Ohio-5372. (Par. 14, other citation omitted.). Based on the officer’s testimony that the pretest medical questions in the NHTSA Manual do not change the mechanics of the test, the lack of medical questions was a minor procedural deviation that did not warrant suppression. (Par. 15).

Procedural issues.

1. No right to withdraw plea.

State v. Gove, 2025-Ohio-701 (9^th. Dist.). The denial of motion to withdraw presentence plea was affirmed. The defendant’s entered guilty pleas to offense from two separate incidents with charges of 1) trafficking in fentanyl, possession of fentanyl, failure to comply with an order or signal of a police officer, obstructing official business, driving while under suspension, and resisting arrest and 2) driving under suspension and two counts of failure to comply with an order or signal of a police officer. At the sentencing hearing (after the defendant’s arrest for nonappearance at a previous sentencing hearing) the defendant moved to withdraw his pleas on the grounds that his brother who faced similar charges in federal court, received a lighter sentence. The motion to withdraw the guilty pleas was overruled.

When determining if a pleas was knowingly, voluntarily, and intelligently made, the court should consider compliance with Criminal Rule 11. If noncompliance is found, does the specific noncompliance excuse a defendant from the burden of demonstrating prejudice, and if so, has the defendant showed prejudice. (Par. 7, citing State v. Dangler, 2020-Ohio-2765.) This requirement may be met by a series of direct questions by the court to the defendant or a dialogue between the court and the defendant showing the defendant understood the consequences of his plea . (Par. 7.)

Criminal Rule 32.1 provides a presentence motion to withdraw a plea must be freely and liberally granted. The court in Gove noted however that the defendant does not have an absolute right to withdraw a plea and is required to demonstrate a reasonable and legitimate basis for the motion. (Par. 13 citations omitted.). A motion to withdraw is discretionary with the trial court with no abuse of discretion when:

1) the defendant is represented by competent counsel;

2) the trial court provided the defendant with a full hearing before entering the guilty plea; and

(3) the trial court provides the defendant with a full hearing to consider the grounds for the motion. (Par. 14, citations omitted.).

In the present case the court found the sole grounds to withdraw his guilty pleas, that his brother got a better deal in federal court, was not sufficient to establish a reasonable and legitimate basis for the motion. (Par. 16, citations omitted.).

The concurring opinion stated the test set out in the majority opinion was procedural, but should be applied to the standard in Criminal Rule 32.1to freely and liberally grant the motion. The concurring opinion distinguished between a slight inconvenience to the court and prosecutor for a presentence motion to withdraw, as compared to post sentence withdrawal that permits the defendant to effectively “sentence shop” and proceed to trial if the sentence is not acceptable or too severe.

The opinion pointed out the added precaution when the presentence motion is based on a claim of innocence. (Par. 20, citing State v. Cuthbertson, 139 Ohio App.3d 895, 899-900, 2000-Ohio-2638 (7th Dist. 2000)). In that case, the issue is not only the defendant’s right to withdraw the plea, but also to assert the constitutional right to a trial by jury. (Par. 21). While as a general rule motions are addressed to the court’s discretion, Criminal Rule 32.1 singles out a presentence motion to withdraw with the presumption it should be freely and liberally granted. (Par. 25, 30, citing State v Xie, 62 Ohio St.3d 521 (1992) and State v Barnes, 2022-Ohio-4486.). Any factors considered by the court when deciding the motion should be weighed in terms of the presumption in Criminal Rule 32.1.

2. Severance of changes and courts.

State of Ohio/City of Bryan v. Merillat, 2025-Ohio-1100 (6^th. Dist.). Felony OVI and drug possession convictions in common pleas court, as well as misdemeanor rear license plate conviction in municipal court, were affirmed. The defendant was initially stopped for lack of a rear license plate light. At the stop the officer smelled alcohol. The defendant showed glassy, bloodshot eyes, slow and slurred speech, and agitated behavior. Although the defendant told the officer he was driving to Marco’s Pizza, he was headed in the opposite direction. The officer testified, and the video showed, as the encounter progressed the defendant became more agitated, uncooperative, and combative. Although asked to get out of the car, the defendant refused requiring assistance from a backup officer.

Although the HGN test did not show any unusual findings, the officer gave the lack of convergence test to determine drug usage other than alcohol. The defendant displayed a lack of convergence in both eyes. The modified Romberg test was also performed.⁴ The officer observed swaying, eyelid and body tremors, and an off count of seven. The defendant also could not successfully perform the walk and turn test. After the defendant’s arrest, a baggie of methamphetamines and an opened, cold beer were found in the car near the driver.

The defendant was initially charged with misdemeanor and felony OVI charges, possession of drugs, and lack of license plate light in the municipal court. Upon indictment in the common pleas court on the felony OVI (based on five prior OVI convictions) and drug charges, those charges were dismissed in the municipal court. The license plate charge was retained by the municipal court where the defendant was found guilty after a bench trial. After motions to suppress and sever the drug and OVI charges were overruled, the defendant entered no contest pleas to both felony charges.

Traffic stop.

Regarding the initial stop, R.C. 4113.05 requires the license plate illumination. The officer testified and the video showed no illumination on the license plate area of the car. As a traffic violation, the officer had reasonable, articulable suspicion to initiate the stop.

Probable cause for arrest.

The court noted “Field sobriety testing of a driver constitutes a seizure under the fourth amendment and must be separately justified by specific, articulable facts showing a reasonable basis for the request to conduct such testing. (Par 18, citations omitted.). Following the stop, the defendant’s glassy, bloodshot eyes, the strong odor of alcohol emanating from the vehicle, the lack of coordination in hand movements, the nervous, agitated, defiant demeanor, and the admission of the presence of alcohol in the vehicle were sufficient to indicate impairment (Par. 27). The results of the field sobriety tests, taken with the officer’s observations, were sufficient to establish probable cause for the defendant’s arrest.

Ability to pay.

The trial court imposed a $500 fine for both felony convictions. The defendant asserted on appeal the trial court did not comply with R.C. 2929.19(B) requiring the sentencing court to determine the defendant’s ability to pay. “Ability to pay” includes both present and future ability. (Par. 27). The appellate court noted that at the change of plea hearing the trial court inquired about the defendant’s age and employment. (Par. 32). In addition, at the sentencing hearing defense counsel told the judge the defendant “is a hard-working, full-time employee, young man from the area and maintains employment and contributes by paying his taxes * * * [B]oth property and income taxes." (Par. 33, emphasis in the original.). The court found the trial court sufficiently considered the defendant’s ability to pay the fine.

Severance of charges.

Criminal Rule 8(A) permits joinder of offenses for trial that arise out of the same act, transaction, or course of conduct. Joinder is favored and is to be liberally permitted to conserve judicial economy and prosecutorial time, conserve public funds by avoiding duplication inherent in multiple trials, diminish the inconvenience to public authorities and witnesses, promptly bring to trial those accused of crimes, and to minimize the possibility of incongruent results that can occur in successive trials before different jurys. (Par. 37, citations omitted.). The court found the defendant’s acts were of a similar character, were part of the same transaction [traffic stop], and were part of a common course of conduct of driving while impaired. (Par. 38). No issue of prejudicial joinder was raised by the defendant on appeal.

Pro se bench trial in municipal court.

Although the license plate light charge was the basis for the stop of the defendant, resulting in the defendant’s arrest on felony charges, the defendant was not entitled to court appointed counsel for the minor misdemeanor change that remained in the municipal court. Similarly, Criminal Rule 32(B), advising a defendant of the right to appeal, is limited by its terms to serious offenses.⁵ The municipal court’s retention of the license plate light charge was consistent with Criminal Rule 5(B) which excludes minor misdemeanor offenses being transferred with felony and other misdemeanor charges to the common pleas court

3. Speedy trial.

State v. Walker, 2025-Ohio-1143 (3d. Dist.). An order overruling motion to dismiss and conviction for improperly handling a firearm in a motor vehicle were affirmed. The defendant was arrested for OVI and the weapons charges. The defendant was found by the police at a rest stop after abandoning his car in a ditch. Field sobriety tests showed the defendant was impaired. The defendant was charged with OVI in municipal court. The OVI charge was dismissed six months later upon motion of the prosecutor and a twenty days later the defendant was indicted on the OVI and weapons charges. The defendant left the state of Ohio after entering a not guilty plea in the municipal court and returned to Ohio to turn himself in until almost four months after the indictment.

The defendant moved to dismiss the charges on speedy trial grounds, asserting the time between the dismissal of the municipal court OVI charge and the service of the indictment should apply to the time to bring him to trial. The motion was overruled in the trial court and the defendant entered a plea to the weapons charge with the OVI charge dismissed. On appeal the court held the time period between dismissal of an original indictment and filing of a subsequent indictment based on the same facts are not counted against the state for speedy trial purposes, unless the defendant is held in jail or released on bail pending the new indictment. (Par. 20-21, citations omitted). The court also found the defendant's conduct by leaving the state or hiding his location from the state while knowing of impending charges constituted a delay occasioned by the defendant's neglect or improper act under R.C. 2945.72(D), which tolled the speedy trial statute.

4. Inability to seal criminal conviction with related traffic conviction.

State v. M.F., 2025-Ohio-747 (8^th. Dist.). Reversing order sealing record of conviction of drug offenses that also involved a traffic conviction. The defendant was initially charged with two felony and one misdemeanor drug charges. The cases were dismissed on the prosecutor’s motion and re-indicted with same drug charges but also included an OVI charge. The defendant plead guilty to the three drug charges and to an amended charge of physical control of a vehicle under the influence. R.C. 4511.194.

After the legally required time after final discharge, the defendant filed a motion to seal both cases. A hearing was conducted and the trial court ordered sealing the records in the first case with the dismissed charges, and the drug convictions in the second case. The trial court overruled the motion to seal the physical control conviction as a traffic offense.

R.C. 2953.32(A)(1)(a) excludes traffic offenses, including violations of R.C. Chap. 4511 from sealing or expungment eligibility. The defendant’s conviction under R.C. 4511.194 for physical control of a vehicle under the influence could not be sealed. Citing State v. Futrall, 2009-Ohio-5590, an applicant with multiple convictions under one case number and one of the convictions is not eligible for sealing, the trial court may not seal the remaining convictions. (Par 9). The court also held the dismissed charges, which arose out of the same incident, were not eligible for sealing because the physical control charge involved the same incident. R.C. 2953.61prohibited sealing the record when the charges have different final discharge dates and one of the offenses is not eligible for sealing. As the appellate court summarized, “until all charged offenses that arise from the same act are eligible for expungement or sealing, none are eligible for sealing or expungement.” (Par. 11).

Sentencing issues

1. Element of offense is not an aggravating sentencing factor.

State v. Mohler, 2025-Ohio-972 (3d. Dist.). OVI, driving under suspension, and aggravated vehicular homicide convictions were affirmed. The defendant was under the influence of multiple drugs when she crossed the center into the opposite lane of travel and collided with the oncoming car. The other driver died from the resulting injuries a few days later. The defendant ultimately entered guilty pleas to the charges. On the aggravated vehicular homicide count, the trial court imposed an indefinite prison term of 11 to 16 1/2 years and a lifetime driver's license suspension.

The defendant asserted on appeal the trial court improperly elevated the seriousness of the offense by considering the fact of victim’s death which was an element of the aggravated vehicular homicide offense. A trial court may not elevate the seriousness of an offense by pointing to a fact that is also an element of the offense itself. (Par. 15, citations omitted.). The court found the trial court’s statement at the sentencing about the victim’s death and the impact it had on her family referred to the mental and emotional harm suffered by the victim's family, friends, and community. The court also distinguished between consideration of the victim’s death and the serious physical harm she suffered for the several days before her death. (Par. 16, citations omitted.).

The court found the trial court considered the principles and purposes of sentencing under R.C. 2929.11 and R.C. 2929.12 when determining the sentence and referred to both statute during the sentencing hearing. The court further noted neither statute requires a trial court to make any specific factual findings on the record. (Par. 17, citations omitted.). "A trial court's statement that it considered the required statutory factors, without more, is sufficient to fulfill its obligations under the sentencing statutes."  State v. Maggette, 2016-Ohio-5554 (3d Dist.). The court found the sentence was within the statutory range for the offense and based on the facts in the record, the sentence was not an abuse of discretion.

2. Split jail sentence.

State v. Cook, 2025-Ohio-946 (5^th. Dist.). Conviction for trespass in habitation with split jail sentence was affirmed. The trial court imposed five years community control with 180 days in jail, 45 days to be served and the balance of 135 days to be served in six months, subject to modification or suspension depending on the defendant’s subsequent conduct.

The defendant asserted on appeal the trial court was not permitted to impose two jail sentences for the same offense. The appellate court held unless prohibited by statute, a court is not prohibited from imposing a jail term that is to be served in two or more nonconsecutive time periods. (Par. 8).⁶ The offense in the present case did not require the jail sentence to be served consecutively and the court was not prohibited from imposing an initial jail sentence as well as a delayed jail sentence. (Par. 9).

3. Lifetime driver’s license suspension.

State v. Alston, 2025-Ohio-1018 (11^th. Dist.). Affirming lifetime driver’s license suspension for second conviction for failure to comply with an order or signal of a police officer, While the defendant was stopped for a passing train, the officer ran the license plate and discovered the defendant had an outstanding felony warrant. The officer conducted a traffic stop with the defendant who disputed the warrant and refused to get out of the car. After discussion with the officer, the defendant rolled up his window and drove off at a high rate of speed. The officer followed in pursuit with lights and sirens. The defendant sped up to 60 miles per hour in residential areas, going through two red lights and a stop sign. The officer, who retained the defendant’s driver license from the stop, lost sight of the defendant and other officers who became involved could not locate the defendant.

The defendant turned himself into the police the next day and after indictment, entered a no contest plea to the felony charge. R.C. 2921.331(E) mandates a class one suspension (lifetime) driver’s license suspension if the defendant was previously found guilty of the same offense under R.C. 2921.331. At the time of the plea the defendant was advised of a lifetime suspension of his driver license for a second conviction of failure to comply with an order or signal of a police officer. On appeal the defendant contested the lifetime driver’s license suspension.

Constitutionality.

The defendant argued the sentence of a mandatory lifetime driver's suspension with no driving privileges was in violation of the Eighth Amendment of the U.S. Constitution as grossly disproportionate to the nature of the crime and shocking to both a reasonable person and the community's sense of justice. The court of appeals noted, however, a driver's or operator's license in the state of Ohio is a privilege, not a right. Doyle v. Ohio Bur. of Motor Vehicles, 51 Ohio St.3d 46, 52 (1990). That privilege can be suspended for convictions of a number of different offenses. (Par. 21). Relying on State v. Holmes, 2006-Ohio-2175 (9^th. Dist.), the court held mandatory driver’s license suspensions do not violate the Eighth Amendment. (Par. 20, citing other decision upholding lifetime license suspensions.).

Prior noncompliance with license suspension.

The defendant argued that because the trial court in the prior failure to comply case did not impose a driver’s license suspension, in contravention to the statutory authority, the present case involved an initial license suspension. The court noted, however, the existence of a prior suspension is immaterial. The statute applies to a prior conviction. “There is nothing to suggest that a defendant must first receive an initial suspension prior to a trial court imposing a lifetime suspension.” (Par. 23).

D) Community control supervision issues.

State v. Bright, 2025-Ohio-725 (5^th. Dist. ). Assault conviction with community control supervision conditions to abstain from the use of illegal drugs and alcohol and to avoid any establishment where the sale of alcohol is the primary source of business was affirmed. To begin with, the defendant failed to object to the conditions at the time of sentencing. The appellate court noted the trial court asked the defendant after sentencing if she had anything further to say, giving the defendant a meaningful opportunity to raise any concerns or objections.

Addressing the merits of the defendant’s appeal under the plain error standard, the court noted a trial court has broad, but not absolute discretion when imposing probation conditions. (Par. 11-12). As the court held in State v. Jones, 49 Ohio St.3d 51, 52 (1990), an appropriate probation condition:

1) is reasonably related to rehabilitating the offender,

2) has some relationship to the crime of which the offender was convicted, and

3) relates to conduct which is criminal or reasonably related to future criminality and serves the statutory ends of probation. See also, State v. Talty, 2004-Ohio-4888.⁷

The appellate court addressed the merits of the defendant’s appeal on the more restrictive plain error review, instead of the broader abuse of discretion standard due to the lack of objection in the trial court. Although there was a questionable nexus between the offense and “no alcohol/no bars” probation conditions, it did not rise to the plain error standard exceptional circumstances and to prevent a manifest miscarriage of justice. Crim. R. 52(B).  (Par. 16. Citations omitted.).

Restitution issues.

State v. Wallace, 2025-Ohio-770 (2d. Dist.). Convictions for three aggravated vehicle assault charges and one OVI charge were affirmed with remand to review and determine the amount of restitution. While speeding, the defendant struck another car and both cars collided with a third vehicle. The driver of the first car struck incurred extensive injuries, resulting in hospitalization and multiple surgeries. Two of the passengers were also injured, including a three year old child whose leg was broken in three places. The defendant’s blood/alcohol level was .161.

Restitution of $10,000 was ordered as part of the sentence. The victim told the court all of the medical bills had been paid, but sought restitution for lost wages, mental anguish, and pain and suffering. No restitution hearing was conducted and the defendant raised a timely objection at sentencing. With no agreement of the restitution amount, an evidentiary hearing is required. In the absence of either, the restitution order was reversed.

The court on appeal also held that R.C. 2929.19(B)(5) requires the trial court to determine the defendant’s ability to pay when determining the amount of restitution. The court acknowledged two other appellate courts, Cleveland v. Rudolph, 2022-Ohio-2363 (8th Dist.), and State v. Oliver, 2021-Ohio-2543 (12th Dist.), holding trial court no longer needs to consider a defendant's present and future ability to pay before imposing restitution because of a victim’s constitutional right to full and timely restitution under Marsy’s Law. This issue, however, was not raised by the state on appeal and subject to review on remand.

Distracted driving

State v. Scarberry, 2025-Ohio-933 (5^th. Dist.). A conviction for distracted driving and cell phone use was reversed. While driving, the defendant unplugged her cell phone due to muffled sound and after putting the phone on speaker mode, continued her conversation holding the phone about five inches from her ear. Passing an officer, she was pulled over and cited for distracted driving. The defendant was found guilty of the charge after a bench trial.

R.C. 4511.204(A), the “hands free/distracted driving” statute, prohibits a driver from operating “on any street, highway, or property open to the public for vehicular traffic while using, holding, or physically supporting with any part of the person's body an electronic wireless communications device." R.C. 451.216(B), however, sets out numerous exceptions to liability. R.C. 4511.204(B)(4) permits using a cell phone directly near the person's ear for the purpose of making, receiving, or conducting a telephone call, if the person does not manually enter any numbers into her phone.” In this case it was undisputed that the defendant did not manually enter any numbers into her phone.

In the present case the court held the “directly near the ear” exception did not require the phone to actually touch the ear. (Par. 8). A phone held four to five inches from the driver’s ear complied with the term “directly near the ear,” not requiring actual physical contact. (Par. 9). Although R.C. 4511.204(B)(6) sets out a separate affirmative defense for speaker phone use which prohibits physical contact with the phone, it did not preclude a separate exception for cell phone use with the speaker phone function when there is no manually entering any numbers into her phone.

Sufficiency of evidence to support conviction.

1. Venue.

State v. Johnson, 2025-Ohio-713 (3d. Dist.). Drug conviction affirmed. The defendant was stopped for driving with improperly tinted windows and suspended license after surveillance of the defendant’s car traveling from Marion County to Detroit in the middle of the night and back within a few hours. The Marion County sheriff detective testified Detroit was a source city for drugs in the area. At the stop the passenger took the drugs (crack cocaine and fentanyl) and hid them in her pants. The defendant denied knowledge or possession of the drugs. At the trial the jury found the defendant guilty of drug possession and not guilty of tampering with evidence.

The testimony at trial described the area, including roads and streets, but there was no specific testimony on venue. The defendant claimed on appeal venue was not proven by the evidence. "Although it is not a material element of the offense charged, venue is a fact which must be proved in criminal prosecutions unless it is waived by the defendant.” State v. Headley, 6 Ohio St.3d 475 (1983). The court noted venue need not be proven by express terms as long at the evidence beyond a reasonable doubt that the crime was committed in the county and state as alleged in the indictment. (Par. 19, citations omitted.). In the present case the court found the testimony of the officers at the scene was sufficient to show the proper venue.

Author’s Note. Whether venue is an element of a criminal offense and failure to prove venue is a final verdict or attachment of double jeopardy in currently pending for review in the Supreme Court of Ohio. State v. Musarra, Sp. Crt. Nos. 2024-Ohio-0540 & 2024-Ohio-0541 Oral argument 5/13/25. On appeal from order denying the prosecutor leave to appeal (2-1) decision. (No. 113486, 8^th. Dist.).

2. OVI and record of prior convictions.

State v. Mason, 2025-Ohio-1040 (5^th. Dist.). The trial court order limiting introduction of prior OVI convictions as enhancement of OVI offense was reversed. This is an appeal by the state. The defendant was charged with two separate OVI offenses; 1) R.C. 4511.19(A)(1)(a), (third OVI offense in ten years) and R.C. 4511.19(A)(2) (prior OVI conviction in twenty years and refusal to submit to chemical test). The defendant offered to stipulate to one prior OVI conviction within ten years which the prosecution rejected. The trial court held one prior conviction was an element of a R.C. 4511.19(A)(2) offense, prior convictions under R.C. 4511.19(A)(1) (a) enhanced the penalty, not the level of offense as it remained a misdemeanor. As such, the prosecution could only present evidence of one prior conviction.

State v. Allen, 29 Ohio St. 3d 53 (1997), previously held prior OVI convictions related to penalty enhancement, not the level of offense and therefore, need not be alleged in an indictment nor proven by the prosecutor. The court in Mason noted that State v. Allen was decided before the amendment to R.C. 4511.19(A(2). The Allen decision is also inconsistent with the subsequent Ohio Supreme Court decision in State v. Hoover, 2009-Ohio-4993, which held the prior conviction in an R.C. 4511.19(A)(2) refusal offense was an element of the offense.

Although under R.C. 4511.19(A)(1)(a), one prior OVI conviction increases the penalty but not the level of offense, as both remain a first degree misdemeanor, two prior OVI convictions elevate the level of offense from a first degree misdemeanor to an unclassified misdemeanor. Due to the elevated level of offense, the prosecution is required to prove the existence of both prior convictions beyond a reasonable doubt. Arriving at this conclusion, the court reversed the trial court order limiting the prosecution to proof of only one prior OVI conviction.

3. BMV records.

State v. Williams, 2025-Ohio- 944 (5^th. Dist.). Convictions affirmed for failure to comply with the order or signal of a police officer, obstructing official business, failure to reinstate driver’s license, two counts of driving suspension, and reckless operation. After the officer observed the defendant driving 50 to 60 mph in a 25 mph zone, almost colliding with the officer, the defendant continued to drive away. He then got out of his car and ran into his home before the officer could catch up to the defendant. The defendant refused to come out of the house despite repeated knocking on the door and the officer’s use of the police car’s loudspeaker. At one point the defendant went to an open upstairs window naked and was told he needed to come out so the officer could issue the traffic citations. Other officers and medics were also dispatched to the house due to the defendant’s condition. The appellate decision did not state how long the officers were at the residence or when the defendant was arrested.

Regarding the license suspension charges, the defendant asserted on appeal there was no evidence presented that the person named and identified in the BMV and LEADS records was the defendant. R.C. 2945.75(B)(2) permits proof of a prior traffic conviction by a certified copy of a BMV record that shows the defendant’s name, date of birth, social security number of the accused is prima-facie evidence of the identity of the defendant and is prima-facie evidence of all prior convictions shown on the record. (Par. 22). Although this statute permits the defendant to present evidence to rebut the evidence of the defendant’s identity or prior convictions, the defendant did not dispute the accuracy of the record or his convictions. (Par 23). Moreover, the defendant stipulated to the record to avoid the prosecution reading all of the past convictions into the record. (Par. 23). The officer’s identified the defendant at trial and testified the defendant’s certified BMV record was obtained by the officer.

The defendant also argued his refusal to come back outside of his home was a refusal to act, not an affirmative action sufficient to meet the requirements for obstruction under R.C. 2921.31(A). For obstruction of official business, the defendant must engage in some affirmative or overt act or undertaking that hampers or impedes a public official in the performance of the official's duties. (Par. 30, citing State v. Brooks, 2007-Ohio-4025). Affirming the conviction, the appellate court found the defendant’s continued refusal to come out of his home and his persistence in disregarding the orders of the police to leave the home was sufficient evidence from which a rational trier of fact could conclude that he acted with the specific intent to prevent, obstruct, or delay the officers in their lawful duties. (Par. 31, 33, citing State v. Williams, 2021-Ohio-4200 (5^th. Dist.)).

Reasonable basis and probable cause.

1. Illegal marijuana use.

State v. Ellis, 2025-Ohio-1014 (11^th. Dist.). A conviction for drug possession and an order overruling a motion to suppress were affirmed. The police arrived upon a report from a resident of a drug transaction in a parking lot of a condominium complex. The officers saw the defendant get into the driver’s seat of the car with another person getting into the passenger side. Due to the tinted windows the officers could not see inside the car. When the defendant got out of the car a few moments later, the officers saw a “large plume of smoke bellow” from the car. (Par. 10). The defendant took items from another car and went back into the first car with the items. When the defendant got out of the car a second time the officers again saw the smoke from inside the car. This time the defendant had a marijuana cigarette in his hand. As the officers approached the defendant they could smell marijuana. Without prompting, the defendant claimed it was medical marijuana and he had a medical marijuana card.

The defendant was arrested and the passenger, who was the owner of both cars, gave consent to search the cars. Cocaine and bags of marijuana were found in the car. In overruling the motion to suppress the trial court found reasonable suspicion of criminal activity including smoking marijuana (which is not legal even with a medical marijuana card⁸) and smoking marijuana while operating a vehicle.⁹ (Par. 17). The court also found the owner had given valid consent to search the vehicles.

The court of appeals affirmed the order overruling the motion to suppress primarily on the issue of valid consent by the owner to search the vehicles. The court further noted that independent of the consent to search, there was sufficient evidence of probable cause based on the criminal activity they observed with the defendant’s smoking marijuana in a running car and the odor of marijuana from the car and the defendant.

State v. Duch, 2025-Ohio-1162 (5^th. Dist.). An order granting motion to suppress in OVI case was reversed. (2-1 decision). The defendant was stopped at 2:37 a.m. for driving with only one headlight and no license plate light. At the stop the officer smelled both burnt and raw marijuana. The defendant admitted smoking marijuana earlier that day and was going home from work at a restaurant. The officer also observed red, bloodshot eyes. The defendant was informed that marijuana is still illegal to be smoked in a car. The defendant got out of the car to perform field sobriety tests. Based on the results of the test the defendant was arrested for being in physical control of a vehicle under the influence. The issue raised was the validity of the expanded traffic stop to conduct field sobriety tests. After a hearing on the motion, the trial court found the officer’s observations were not sufficient to expand the stop for field sobriety tests.

The defendant did not dispute the validity of the traffic stop. On appeal, the court noted when an officer encounters addition facts on a traffic stop that gives rise to a reasonable, articulable suspicion of criminal activity beyond that which prompted the initial stop the detention of the driver may be extended. State v. Batchili, 2007-Ohio-2204. (Par. 18). Although the defendant gave an explanation that he had smoked seventeen hours earlier, the officer is not obliged to accept that explanation. "Reasonable suspicion [of drunk driving] 'need not rule out the possibility of innocent conduct.'" Navarette v. California, 572 U.S. 393 (2014). (Par. 24, other citations omitted.).

The intrusion on the driver's liberty resulting from a field sobriety test is minor and the officer therefore need only have reasonable suspicion the driver is under the influence of alcohol to conduct a field sobriety test. (Par. 19, citations omitted.). Drawing the similarity to alcohol impairment in a vehicle, the court acknowledged that the smell of marijuana alone is not sufficient for a reasonable suspicion to expand the scope of the initial traffic stop to conduct field sobriety tests. (Par. 27). When combined with other factors in this case, such as the red and bloodshot eyes, based on the totality of the circumstances, there were specific articulable facts of a reasonable suspicion the defendant was driving under the influence.

The dissenting opinion emphasized no erratic driving or other signs of impairment were seen or reported. The smell of marijuana, which could have occurred hours before the stop, and red, bloodshot eyes, by themselves, did not provide a reasonable and articulable basis for prolonging the traffic stop or for the administration of field sobriety test. (Par. 37).

2. Conflicting video evidence and testimony.

State v. Lebron-Novas, 2025-Ohio-1101 (6^th. Dist.). (2-1 decision). Drug trafficking and possession convictions were vacated and remanded for a new trial based on reversal of validity of traffic stop. The defendant was stopped for following another vehicle too closely in violation of R.C. 4511.34. After a hearing on a motion to suppress disputing the validity of the traffic stop the trial court overruled the motion based on the testimony of the citing officer and the dashcam video. On appeal, the court held the officer’s testimony was inconsistent with the video finding the traffic stop was not valid.

The defendant was observed driving behind a semi-trailer truck. The officer was at the side of the road when the vehicles passed. Although the officer did not see any violation at that time, drove to catch up to the defendant’s car. At the suppression hearing the officer testified that after following the defendant’s car, he made the determination of the violation based on the estimated speed of the vehicles, the distance between the vehicles, road conditions, reaction and braking time, and the position of other vehicles in the area.

On appeal, the court extensively reviewed both the video footage and screenshots that were introduced as evidence at the suppression hearing. Determining material inconsistencies between the officer’s testimony and the video evidence, the majority held an appellate court could not find that the decision of the trial court was supported by competent and credible evidence, relying on Vermillion v. Tedford, 2020-Ohio-3396 (6th Dist.). (Par. 19, other citations omitted.). The court found when there are discrepancies between testimonial evidence and video or other photographic evidence, the trial court is required to make a determination on all of the evidence instead of accepting one version without regard to the other.

The dissent asserted that the video and officer’s testimony were not inconsistent regarding the distance of the defendant’s car behind the truck. (Par. 55). Any inconsistent statements by the officer were not material to the traffic violation that was the basis of the stop. (Par. 69). The dissent also stated that from the officer’s viewpoint there was reasonable, articulable suspicion of a traffic violation.

Author’s Note: This case turns, for the most part, on the interpretation of the video and photographic evidence as they relate to the officer’s testimony, with the majority’s finding of a “glaring discrepancy” (Par. 33) and the dissent’s finding of the video was consistent and/or contained immaterial contradictions.¹⁰ The critical issue is when there are apparent inconsistencies between the two, the trial court’s determination should include all of the evidence with an explanation of the discrepancies or a finding of credibility and/or reliability of some of the evidence over the other evidence that may be conflicting.

3. Loss of police video

State v. Jones, 2025-Ohio-1098. (6^th. Dist.). An order dismissing charges due to loss of video recordings was affirmed. The defendant was involved in a collision striking another vehicle that had run a stop sign. The other driver was killed in the collision. The defendant was charged with OVI in municipal court with that charge being dismissed upon prosecutor’s motion a few days later. Seven months after the dismissal in municipal court, the defendant was indicted in the common pleas court on two counts of aggravated vehicular homicide, OVI, speeding, and reckless operation of a vehicle.

While the first case was pending in the municipal court, defense counsel filed a motion for production of any video evidence. A motion was made in the second case to preserve all video evidence. The defendant later filed a motion to dismiss due to the failure to preserve three dash-cam videos from the three troopers who had responded to the scene of the crash. The parties did not dispute that the dash cam evidence went missing after it was specifically requested by the original defense counsel.

The videos showed the field sobriety tests. One of the officers present could not remember if the HGN test was given. Another officer testified he recalled the HGN test being given from his review of the video recording before it was destroyed. Although the police report indicated the field sobriety test scores, the officers were not able to state the specific clues for any of the three field sobriety tests. In granting the motion to dismiss the trial court found the burden was on the prosecution to show the videos were solely inculpatory and failed to meet that burden because the evidence could not be obtained through alternate channels. The court specifically noted, “Cross-examination of the troopers present at the scene of the crash is not a valid substitute for the actual video footage of the field sobriety testing, especially considering their inability to recall specific details beyond what is reflected in the written report.” (Par. 13).

A due process violation for the prosecution’s failure to preserve evidence depends on whether the lost or destroyed evidence involves material exculpatory evidence or potentially useful evidence. State v. Powell, 2012-Ohio-2577. (Par. 18). Evidence is constitutionally material when it possesses an exculpatory value that was apparent before the evidence was destroyed and is of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means. (Par. 19).

When evidence is lost or destroyed after the prosecution receives a defense request to preserve the evidence, the burden is on the prosecution to show the evidence was not materially exculpable.¹¹ (Par. 21). The court found the prosecution failed to meet the burden that the videos did not contain materially exculpable evidence and the videos were critical to the defense. The court pointed out the videos showed the part of the field sobriety tests that the defendant passed and other conduct by the defendant at the scene to show he was not impaired. In the present case aggravated vehicular homicide charge was predicated on an OVI offense. With conflicting evidence of the level of impairment, if any, the missing videos would have shown the defendant’s performance during the sobriety testing in greater detail than the troopers were able to recall. With the missing evidence, the court affirmed the trial court’s order to dismiss the charges.

4. Lack of motion to suppress.

State v. Cruz, 2025-Ohio-1154 (5^th. Dist.). OVI conviction affirmed. The defendant was stopped after making a wide right turn without a turn signal. As the officer approached the car the officer smelled alcohol on the defendant’s breath and marijuana from the car. The defendant also had glassy and bloodshot eyes and her movements were slow. The defendant initially denied she had anything to drink that night, but later told the officer she had one drink.

The defendant got out of the car at the officer’s request to perform the HGN test. The officer recorded six out of six impairment clues. The officer also observed vertical-gaze nystagmus (VGN) which the officer testified at trial can show a high dose of alcohol for an individual. With the lack of convergence test for marijuana impairment, the defendant’s left eye twice failed to converge. The final two tests, divided-attention test using the alphabet and a walk-and-turn test, showed signs of impairment. Based on the observations and test results the defendant was arrested for OVI and subsequently found guilty after a jury trial.

On appeal the defendant raised ineffective assistance of counsel for failing to file a motion to suppress. The only suppression issue raised was the officer’s direction to the defendant to keep her hands on her own cheeks during the HGN test instead of her hands at her side. The officer testified it was important to see the defendant’s hands for officer safety.

Failure of trial counsel to file a suppression motion does not by itself constitute ineffective assistance of counsel.  (Par. 9, citations omitted.). In order to prevail on a claim for ineffective assistance of counsel for not filing a motion to suppress, the defendant must show 1) a basis for the motion, 2) reasonable probability of success, and 3) reasonable probability suppression of the challenged evidence would have changed the outcome at trial. (Par. 9, citations omitted.).

In the present case the court found the officer complied with all of the requirements for administering the HGN test, including pretest medical questions. The placement of the defendant’s hands had no impact on the administration of the tests or their results. Consequently, the absence of a motion to suppress did not result in ineffective assistance of counsel.

The defendant also asserted the verdict was against the manifest wight of the evidence in light of her statement that she only had one drink that night. The counter evidence included the officer’s observations and field sobriety tests results, corroborated by video from the scene. The court concluded the jury did not lose its way or create a manifest miscarriage of justice in finding the officer’s testimony more credible than the defendant’s inconsistent roadside statements regarding her alcohol consumption.(Par. 25).

State v. Dawes, 2025-Ohio-2576. (6^th. Dist.). Consecutive sentences for two first degree misdemeanors were reversed. The defendant was stopped for speeding and lack of use of turn signal. The officer smelled burnt marijuana when he approached the car which the defendant /driver explained that he had a medical marijuana card.¹² After a search of the vehicle revealed seven pounds of marijuana flower products and nine pounds of THC gummies and edible products, the defendant and the passenger were indicted for marijuana possession, a third degree felony. The charge was subsequently dismissed with two first degree misdemeanor charges, possession of criminal tools and attempted marijuana possession, filed in the municipal court. The defendant entered guilty pleas to both charges and the case was passed for a presentence report.

At the sentencing hearing the defendant had not fully provided the presentence information based on his position that probation was not necessary. The trial court noted the defendant’s lack of coming forward with information about the offense by the defendant’s refusal at the time of the stop to give his cell phone to the officer when asked. The trial court imposed two consectutive180 day sentences for a total of 360 days in jail.

The appellate court noted a misdemeanor sentence that falls within the permissible statutory limits is presumed to be lawful, but must comply with the statutory misdemeanor sentencing guidelines.¹³ In this case the court of appeals noted the trial court’s sentence appeared to be based on the defendant’s refusal to give his phone to the police when arrested, which was not a recognized aggravating sentencing factor. (Par. 15). Moreover, the defendant had a constitutional right to refuse to turn over the cell phone asserting his right against self-incrimination. (Par. 14). The case was remanded to the trial court for re-sentencing.

Author’s Note: Common pleas courts have concurrent jurisdictions with municipal and county courts for misdemeanor offenses. When an indictment contains misdemeanor only misdemeanor offenses, the common pleas administrative judge may transfer the case within fourteen days from the date the indictment is filed with the clerk to a municipal or county court with the proper venue. Crim. R. 21(A). The transfer procedure applies to the entire case, not a partial transfer of offenses.

In State v. Parker, 2007-Ohio-1534, the Ohio Supreme Court noted that separating misdemeanor offenses in a municipal court with felony offenses arising out of the same set of circumstances in the common pleas court was not an acceptable practice. (Par. 29). In Parker the felony charges were dismissed on speedy trial basis because the defendant was held in jail on the related misdemeanor charges in the municipal court even though released on bond by the common pleas court on the felony charges.

House arrest

State v. Kirkendall, 2025-Ohio-2497 (1^st. Dist.). A sentence imposing house arrest for five years as a probation condition with only release for treatment was reversed. The defendant was convicted of aggravated menacing. The conviction arose out of Facebook threats the defendant made to Walmart employees after being fired. The defendant was intoxicated at the time and turned himself in after the Facebook post went viral and appeared on the evening television news.

At sentencing, the defendant was given a 180 day suspended sentence with five years’ probation with 24/7 house arrest and electronic monitoring. As part of his sentence, the defendant was required to enroll in mental health and substance abuse treatment and only allowed to leave the house to attend treatment sessions.¹⁴ After the defendant filed his notice of appeal the trial court modified the sentence to permit the defendant’s release from house arrest for school, to look for a job, and employment purposes if the defendant obtains a job. (Par. 11).

On appeal the court recognized a trial court has broad imposing community control conditions but limited to any statutory restrictions. R.C. 2929.27(A)(2) authorizes house arrest with electronic monitoring as a probation condition. R.C. 2929.01(P)(1), however, provides an exclusion “for periods of time during which the offender is at the offender's place of employment or at other premises as authorized by the sentencing court …” The court noted the phrase, “ as authorized by the sentencing court” was limited to “other premises.” (Par. 20-22). In other words, a house arrest sanction has a built in statutory exception for work release. The court reversed the sentence and remanded the case to the trial court to resentence with work release for any period of house arrest.

After the notice of appeal was filed the trial court attempted to modify the probation conditions to conform with the statute, but was divested of jurisdiction to do so. “When a case has been appealed, the trial court retains all jurisdiction not inconsistent with the court of appeals' jurisdiction to reverse, modify, or affirm the judgment.” Yee v. Erie Cty. Sheriff's Dept., 51 Ohio St.3d 43 (1990), quoting In re Kurtzhalz, 141 Ohio St. 432 (1943). The court found the trial court’s attempt to modify the sentence was correct, but could not be done until the case was remanded from the court of appeals. (fn.1).

Author’s Note: Other than a first offense within ten years, a court may impose half of the mandatory jail sentence and impose house arrest or continuous alcohol monitoring when the court issues written findings that the defendant would not be able to begin serving that term within the sixty-day period following the date of sentencing. R.C. 4511.19(G)(3). The work release exception set out in R.C. 2929.01(P) also applies when the court imposes house arrest for an OVI offense.