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Traffic Signals — August 2025

TRAFFIC SIGNALS NEWSLETTER

Dear Colleagues,September 8, 2025

This newsletter sets out 1) a summary of Ohio court decisions issued last month concerning impaired driving, alcohol and drugs of abuse, traffic safety offenses, and other procedural related issues that may be raised in these cases, and 2) information on the first Ohio Impaired Driver’s Symposium. The cases involve evidentiary, 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, August, 2025.

OVI offenses.

City of Cleveland v. Rivers, 2025-Ohio-2868 (8^th. Dist.). OVI and failure to control convictions were affirmed. This case arose out of a single car collision with a fence. Police and fire arrived at the scene. The officer noted the defendant smelled of alcohol, was sweating profusely, and had slurred speech. A red striped beer bottle was seen on the floor in front of the passenger seat. Field sobriety tests were not performed because the defendant was already on a gurney for transport to the hospital by ambulance.

Operation of vehicle.

The statutory definition of operation, R.C. 4511.01(HHH) of “to cause or have caused movement” includes both present and past tense. (Par. 16, citation omitted.). The operation of the vehicle does not have to be witnessed but may be inferred from the circumstances surrounding the vehicle at the time of observation by the witnesses.  (Par. 16, citations omitted.) Circumstantial evidence has the same weight as direct evidence to prove an element of a criminal offense. (Par. 16). The court found the testimony that the defendant was the only person in the car, her position in the driver’s seat, and statements by fire department personnel that the engine was running when they arrived as she tried to back out her car, and had driven into the fence was sufficient evidence to establish operation of the vehicle and actually seeing the defendant move the car was not required.

Supporting evidence.

The defendant also challenged the sufficiency of the evidence to prove she was under the influence when operating the car. The officers on the scene testified to the defendant’s slurred speech, profuse sweating, and inability to follow directions. The court noted field sobriety tests are not required to prove an OVI conviction. (Par. 17, citations omitted.). The court further noted “any lay witness, including a police officer, may testify whether an individual appeared intoxicated." (Par. 17, citation omitted.). The court held this evidence, coupled with her driving off the side of the road, was sufficient to support the OVI conviction.

State v. Frasure, 2025-Ohio-2922 (11^th. Dist.). OVI and trespass convictions were affirmed. The defendant was found passed out and slumped over the steering wheel in a right turn lane. There were other cars behind the defendant waiting to make the same turn when the officer arrived. Although the car was not moving, the engine was running and in the drive gear. The officer reached in, put the car in park, and took the keys out of the ignition. An open fireball container was in the center console. The defendant refused medical treatment. After failing the HGN test, the defendant was asked for a urine sample but was unable to provide one. He submitted to a breath test with a .271 BAC. The defendant entered a guilty plea to the charge, which was his fourth conviction in ten years.

On appeal the court upheld the 26 month OVI sentence finding it was within the statutory range. The trial court was not bound by the joint sentencing recommendation between the prosecution and defendant for all of the cases, considering the impact of the cases on the victims and repeated probation violations.¹

Regarding the challenge to the guilty plea procedure, Criminal Rule 11 provides a checklist as the best way to ensure pleas are knowingly and voluntarily made. State v. Clark, 2008-Ohio-3748. (Par. 10). The appellate court found the trial court fully complied with the requirements of Criminal Rule 11 as well as advised the defendant that it would not be bound by the jointly recommended sentence. (Par. 11).

Other traffic offenses

State v. Gabriel, 2025-Ohio-2971 (5^th. Dist.). Speeding conviction was affirmed. After being cited for going 69 MPH in a 55 miles per hour zone, the defendant was found guilty of the charge.

Right to travel.

The defendant asserted the conviction impeded his constitutional right to travel. Although the defendant has a constitutional right to travel, it does not extend to the specific mode of transportation, such as operating a motor vehicle. (Par. 8). The right to travel is simply the right to move freely and indiscriminately between the states. Sanchez v. Roe, 526 U.S. 489, 500 (1999). The fundamental right to travel does not equate to a fundamental right to drive a motor vehicle. Duncan v. Cone, No. 00-5075, 2000 U.S. App. LEXIS 33221, 2000 WL 1828089 (6th Cir.), (Par. 9, citations omitted.). "[T]he right to travel is protected under the Fifth Amendment, but it is not an absolute right. States have the power to regulate the use of their highways and require drivers to have a valid license." (Par. 9, citations omitted.)

A burden on a single mode of transportation does not impede one's right to travel. Duncan, supra. The right of a citizen to operate a motor vehicle upon the highways of this state is not a natural or unrestricted right, but a privilege which is subject to reasonable regulation under the police power of the state, in the interest of public safety and welfare." Ryan v. Andrews, 50 Ohio App. 2d 72, 76 (1976) (Par. 10). The court noted Ohio's traffic laws, such as requiring a driver's license and obeying speed limits are reasonable state regulations in place to protect the public and promote safety on Ohio's roadways. (Par. 13).

Culpable mental state for traffic violations

The appellate court found the defendant’s assertion that willfulness was required to be proven was frivolous. (Par. 15). To begin with, willfulness is not defined or contained in the Ohio Revised Code as a culpable mental state. (Par. 16). In addition, a speeding offense, being regulatory in nature designed to protect the health, safety, and well-being of the community, is a strict liability offense. (Par. 17, citation omitted.). The statutory language as well as the lack of a culpable mental state clearly indicate the legislative intent to impose strict liability. (Par. 17).

State v. Nikzad, 2025-Ohio-2972 (5^th. Dist.). Conviction for speeding in school zone was reversed. The defendant was cited for going 37 miles per hour in a school zone. The non-school zone speed was 35 miles per hour. At a bench trial the officer testified at the time of the incident there were two sets of yellow flashing lights in the school zone for both eastbound and westbound traffic. R.C. 4511.21(B)(1)(a) requires signs to delineate a school zone. In the present case there was no testimony the school zone was also delineated by signs. Nor could any sign be seen from the officer’s dash cam video. A flashing yellow light was not a substitute for a statutorily required school zone sign. Based on the lack of any evidence of signage defining a school zone, the court found the State failed to establish Nikzad was speeding in a school zone pursuant to R.C. 4511.21(B)(1)(a).

State of Ohio/City of Huron v. Holz, 2025-Ohio-2711 (6^th. Dist.). Convictions for resisting arrest, obstructing official business, and failing to stop after an accident were affirmed. The defendant sideswiped another car while passing on the freeway onramp. The other driver called the police while following the defendant to his home. The police arrived at the defendant’s home and saw the matching damage to the two vehicles. The defendant initially did not come to the door at the police officer’s knocking, but eventually came out of the house when he was told the truck would be impounded. Despite police warnings, he attempted to get into his truck. An officer stepped to the truck’s driver’s side door to block the defendant and keep him from driving away. The officers said the defendant appeared intoxicated. The defendant refused to get out of the truck and scuffled with the police. After a jury trial the defendant was found guilty of all charges.

The defendant asserted on appeal that he should have been permitted to call his mother’s friend as a witness at trial. The appellate court noted the defendant did not disclose the names of any witnesses, despite numerous requests by the prosecutor. Citing the purpose of the discovery procedures in Criminal Rule 16, to "prevent surprise and the secreting of evidence favorable to one party. The overall purpose is to produce a fair trial." City of Lakewood v. Papadelis, 32 Ohio St. 3d 1 (1987),  State v. Mitchell, 47 Ohio App.2d 61 (2d Dist. 1975). (Par. 19).

The court further noted that although the trial court had the discretion to exclude an undisclosed witness, the trial court must find that a lesser sanction would not accomplish the purpose of discovery and the prosecution would be prejudiced if the witnesses were permitted to testify. (Par. 20, citation omitted.). When imposing this sanction the court must consider

1) the extent of surprise or prejudice to the State;

2) the impact exclusion of the witness would have on the evidence and the outcome;

3) whether the violation was in bad faith; and

4) the effectiveness of less severe sanctions.

(Par. 21, citations omitted.).

Rejecting the defendant’s argument, the court noted that although one of the police reports indicated a woman was present at the defendant’s home when he was arrested, she was not identified. The defendant did not indicate the nature of the witness’ testimony and did not proffer the expected testimony for the record.² Without knowing the excluded testimony the court held it could not determine if its exclusion was improper.

Video evidence.

State v. Caughenbaugh, 2025-Ohio-3064 (5^th. Dist.). An order granting a motion to suppress was reversed on appeal. An officer who was behind the defendant made a traffic stop when he saw the wheel of the car cross over the double yellow line. After a hearing on a motion to suppress, the trial court granted the motion noting, the video recording from the officer’s dash camera was not discernibly corroborative of the officer’s testimony. (Par. 14).

On appeal, the court agreed with the trial court that from the distance of the officer’s car, limited lighting and dense fog, the video recording did not visibly show the defendant’s vehicle crossing the center line of the road. (Par. 5). The court noted, however, the trial court must consider all of the evidence, including the officer’s testimony, and not based its decision solely on the video evidence. State v. Thompson, 2025-Ohio-2427 (5th Dist.). (Par. 7, 9).  Although the court is permitted to believe or disbelieve any witness’s testimony, the testimony must be considered, regardless of credibility, rather than sole relieve on the video recording.

State v. Wilson, 2025-Ohio-30316 (9^th. Dist.). Convictions for reckless operation and failure to use turn signal were affirmed. When changing lanes, the defendant collided with another car in the left lane. A video recording by the other driver showed the defendant moving into the lane and the other driver moving to the berm and accelerating. The court found from the video evidence that the defendant began moving left into the other driver's lane well before the defendant’s car was entirely in front of the other driver. (Par. 11). After the bumpers of the cars collided, the other vehicle moved into the middle lane, but the defendant also moved into the middle lane even though only a little more than half of his truck was in front of the other driver. (Par. 11).

On appeal the defendant asserted the prosecution was required to preserve more of the other driver’s video. The court held, however, the prosecution disclosed all the video it received from the other driver and the prosecution does not have an obligation to produce video that is not in its possession and has never been in its possession. State v. Grigley, 2007-Ohio-3159, ¶ 35 (2d Dist.). (Par. 6). The court further noted there was no evidence of the existence of additional video footage sought or that it is exculpatory.

Although the evidence showed the other driver sped up rather than slowing down when the defendant began moving into the left lane, the defendant was at fault for moving into the lane without proper clearance. Overall, the court noted both drivers were behaving inappropriately. Despite the other driver’s conduct, the court found this was not the exceptional case where the evidence weighs heavily against the convictions. (Par. 12).

Alternatives to conviction.

1. Intervention in lieu of conviction.

State v. Jackson, 2025-Ohio-2964 (7^th. Dist.). Revocation of participation in intervention in lieu of conviction (ILC) was affirmed. The defendant plead guilty to two charges, found guilty, and was admitted into the ILC program with the sentencing held in abeyance. The defendant later failed to comply with the program requirements including stopping treatment and failure to appear in court. After absconding for three years, the defendant was arrested and returned to court. At the revocation hearing the defendant admitted the violations and the case was passed for sentencing. The defendant was subsequently sentenced to a prison term.

On appeal the defendant asserted the trial court did not provide two hearings before finding a violation. The appellate court noted, however that the two hearing requirement applies to a community control supervision violation not a termination of ILC. Although both are under the court’s supervision, ILC and community control are not the same. While community control is a penalty for a crime, R.C. 2929.01(DD), ILC is "an opportunity for first time offenders to receive help with their dependency without the ramifications of a felony conviction." State v. Ingram, 2005-Ohio-1967, ¶ 3 (8th Dist.). (Par. 9).

ILC is governed by R.C. 2951.041, not Criminal Rule 32.3. (Par. 9). When a defendant is charged with failing to comply with the ILC conditions, R.C. 2951.041(F) requires the court to conduct a hearing. The court in Jackson noted only a single hearing is required for an ILC violation, which satisfies the defendant’s due process rights. relying on State v. Brotherton, 2024-Ohio-5045, ¶ 19 (12th Dist.). (Par. 11).

2. Diversion.

State v. Reichert, 2025-Ohio-2965 (7^th. Dist.). An order terminating participation in diversion program and conviction of underlying offense were reversed and remanded with directive to vacate the conviction and dismiss the case. The defendant had previously pleaded guilty to child endangerment and permitted to enroll in a diversion program. The diversion program conditions included no consumption of alcohol, marijuana, or other drugs and a drug/alcohol evaluation. The defendant was removed from the pretrial diversion program after testing positive for THC from medical marijuana.

The prosecutor recommended dismissal of the charge with a finding that the defendant satisfactorily completed the diversion program. The court did not accept the recommendation and sentenced the defendant to 180 days in jail with credit for 60 already served, the balance with two years’ probation. The sole reason for terminating the defendant’s participation in the diversion program was the use of medical marijuana.

Diversion program procedure.

R.C. 2935.36(D) provides upon recommendation of the prosecutor, and satisfactorily completion of the diversion program, the court shall dismiss the charges. The court held R.C. 2935.36 vests authority in the prosecution for the pre-trial diversion program. Based on this statutory language, the court held the legislature vested the prosecutor with authority to establish a pre-trial diversion program, including when to proceed with prosecution and when to dismiss for completion of the diversion program. A trial court violates the separation of powers doctrine when it takes the administrative and executive decision of whether to prosecute a defendant away from the prosecuting attorney. State v. Curry, 134 Ohio App.3d 113, 118 (9th Dist.1999). (Par. 24).

Similarly, the prosecutor, not the court has the authority to establish a diversion program under R.C. 2935.36 and the court crosses the separation of powers line when it establishes its own diversion program. (Par. 27-28).³ The court’s role in a diversion program is critical to supervise compliance with diversion conditions, but as part of a plea agreement, the prosecutor, not the court, decides if the prosecution should proceed. (Par. 25). In this case, the court held the trial court was required to follow the recommendation of the prosecutor under R.C. 2935.26(D) and dismiss the case.

Prohibition of medical marijuana use.

Reviewing the trial court’s prohibition of medical marijuana as a diversion program condition, the appellate court applied the standard for reasonable probation conditions under State v. Jones, 49 Ohio St.3d 51 (1990). The court applied the analysis in State v. Lynn, 2023-Ohio-4429 (5^th. Dist.), which recognized the rehabilitative purpose is not served when the probation condition proscribes the lawful use of marijuana for medical purposes any more than it is served by the lawful use of a prescription drug. (Par. 34, citing People v. Tilehkooh, 113 Cal.App.4th 1433, 1444 (2003).

The court in Lynn found the condition of refraining from medical marijuana use bore no relationship to the underlying crimes. An absolute ban on using drugs without making exceptions for medical marijuana did not reasonably serve the ends of community control. In arriving at this conclusion, the court in Lynn distinguished between recreational and medical marijuana as well as the reason the defendant sought to use medical marijuana. Although a defendant's possession of a medical marijuana card does not bar the trial court from imposing a community control condition that the defendant refrain from using marijuana, a defendant is not precluded from raising the use of medical marijuana in compliance with a valid medical marijuana card as an affirmative defense. State v. Ryan, 2021-Ohio-4059 (11^th. Dist). (Par. 39, 43). In the present case the reason for medical marijuana use was not addressed by the trial court.

Auther’s Note: R.C. 3796.22(C)(1) prohibits prosecution of a person with a valid medical marijuana card for obtaining, using, or possessing medical marijuana. Similarly, R.C. 3780.36(C) provides A person is not subject to arrest, criminal prosecution for lawful use of marijuana. These prohibitions, however, are limited to prosecutions and do not apply to probation violations. See, State v. Williams, 2025-Ohio-461 (8^th. Dist.). In the present case the removal for the diversion program resulted in a reinstatement of the prosecution for otherwise lawful marijuana use and therefore was within the scope of the prohibition.

Federal marijuana enforcement.

United States v. Hinds, Case Nos. 24-1704/22-18482025 U.S. App. LEXIS 20178, 2025 WL 2268122 (6th. Cir. 2025). An order overruling motion to suppress and firearm and drug possession convictions were affirmed. The officers approached a parked car on a residential street that was full of smoke. The defendant/passenger was rolling a marijuana joint when the officers approached the car. Although the defendant had a medical marijuana card,⁴ the officers searched the car based on a violation of marijuana possession under the federal Controlled Substance Act, 21 U.S.C. §§ 812, 844. (CSA). The subsequent search found crack cocaine baggies, containers of marijuana, a digital scale, and a pistol, as well as $2,100 in the defendant’s underwear.

Regarding the validity of the search, the court held absent specific federal prohibition, "the Fourth Amendment does not prevent state officers from enforcing federal law, relying on United States v. Whitlow, 134 F 4th. 914 (6^th. Cir. 2025).⁵ The CSA is silent on state officer enforcement so state officers were not prohibited from enforcing federal marijuana laws. The court pointed out that although with the medical marijuana card the defendant could raise an affirmative defense to the marijuana charge, but “marijuana transport remained presumptively unlawful and thus evidence of a possible crime that could support probable cause.” Citing see People v. Anthony, 327 Mich. App. 24, 932 N.W.2d 202, 215 (Mich. Ct. App. 2019).

The Consolidated Appropriations Act, 2017, Pub. L. No. 115-31, div. B, § 537, 131 Stat. 135, 228 (2017) prohibits the Justice Department from prosecuting individuals or organizations that produce, distribute, or possess marijuana in compliance with their state's marijuana laws. The court noted there was no evidence that the officers who conducted the search were using federal funds or prohibited from enforcing federal marijuana laws.

Failure to comply with lawful police order.

State v. Jeffries, 2025-Ohio-2983 (1^st. Dist.). A conviction for failing to comply with a lawful police order was affirmed. The defendant was a front seat passenger at a traffic stop. The officer recognized the defendant from a prior firearm incident. Based on this information, the officer’s safety concerns, and the defendant’s nervous appearance, the officer ordered the defendant out of the car. The defendant was asked to exit multiple times, but kept looking at his phone, telling the officers to wait. He subsequently put one leg out on the ground, but continued to sit in the car. After waiting 15 to 20 seconds, the defendant was removed from the car by the officer, handcuffed, and search. Some marijuana was found on the defendant. As he was taken to the police van, the defendant stuck out his knee to prevent the van door from closing. At a bench trial the defendant was found not guilty of obstructing official business but guilty of failing to comply with a lawful police order.

Addressing the weight and sufficiency of the evidence, the appellate court noted the offense of failing to comply with a police officer’s lawful order under R.C. 2921.331 does not set out a specific mens rea. Based on the application of R.C. 2901.21(C)(1),the court held when an element of an offense involves knowledge or intent, but the statute neither specifies culpability nor plainly indicates a purpose to impose strict liability, the applicable mens rea is reckless. (Par. 13).

The court noted the officer had a right to order the passenger out of the car, and therefore, there was no dispute that the order was lawful. (Par. 14, citations omitted.). On the issue of compliance, the court found the defendant was ordered multiple times. The defendant’s response to “wait” showed he heard the order but refused to comply. The court noted R.C. 2921.331 does not specify an explicit time requirement that an offender must be given to comply with an officer's lawful order. Due to the acknowledgment of the unambiguous order and refusal to comply the court found the evidence supported the defendant’s reckless conduct by disregarding the order. (Par. 17).

State v. Adams, 2025-Ohio-2800 (6^th. Dist.). A conviction for failing to comply with a lawful police order and an order overruling a motion to suppress were affirmed. While surveilling a residence known for high drug activity, the officers saw a car pull up to the house with the front seat passenger go into the house for two minutes and back to the car. The car had Michigan license plates and improper heavily tinted windows. Once the car pulled out, the police attempted a traffic stop. The car slowed down and drove into a parking lot. Before the traffic stop could be made, the passenger jumped out of the car and ran. The car then drove away at a high rate of speed, ignoring the police car lights.

During the high speed chase, the defendant ignored traffic devices, drove off of the roadway, through front yards, onto sidewalks, and ultimately fled on foot, abandoning the car at a commercial business. After the defendant ran off into the woods, the police found his wallet, cell phone, and State of Michigan identification card in the abandoned vehicle. After denial of the motion to suppress, the defendant entered a no contest plea and was found guilty of failing to comply with a lawful police order.

Affirming the order overruling the suppression motion, the appellate court found the defendant lacked standing to challenge the search and seizure of his abandoned property. (Par. 21, relying on State v. Camper, 2023-Ohio-4673, (10th Dist.). As voluntary abandoned property the defendant possessed no reasonable expectation of privacy. (Par. 21, citations omitted). In the present case the court found a traffic stop was attempted, but not completed due to the defendant fleeing on foot before officers could effectuate the stop.

State v. Protich, 2025-Ohio-2981 (1^st. Dist.). Convictions for obstruction of official business, trespass, and resisting arrest following a bench trial were affirmed. After accosting multiple bar patrons, the defendant was asked to leave but refused to do so. After the police were called, the defendant left the bar. When the officers met the defendant outside the bar. The defendant refused to provide any identification and attempted to walk away from the police. When the officer tried to grab the defendant’s arm, the defendant pulled away. Eventually, the defendant was taken to the ground but put his hands under his body to prevent from being handcuffed.

Trespass

The defendant refused to leave the bar after being requested to do so, leaving only after the police were called. Although R.C. 2911.21 does not set out a specific time to leave, the court noted a guest must immediately leave once the privilege to remain on the premise is withdrawn. (Par. 27). The defendant admitted he refused to leave, but left shortly thereafter. The court also noted that when leaving the defendant continued to bother other patrons. The court held the defendant’s delay and continued refusal to leave however brief, was sufficient to support the trespass conviction.

Obstruction

Regarding the obstruction conviction,⁶ the court noted R.C. 2921.31, the obstructing-official-business statute, prohibits affirmative acts "that create a 'substantial stoppage' of a police officer's official business." (Par. 16, citations omitted.). The statute does not set out a specific period of time for a substantial stoppage as long as the defendant's act hampered or impeded the officer in the performance of his duties. (Par. 16, citations omitted.).

R.C. 2921.29(A)(1) requires a person to produce identification when requested by the police when the person may be involved in the commission of a crime. The trespass charge due to the defendant’s refusal to leave the bar validated the officer’s request. The court noted

the failure to produce identification when requested by a police officer does not, in itself, constitute obstructing official business. Relying on  State v. Brickner-Latham, 2006-Ohio-609 (3d Dist.), a defendant may be convicted of obstructing official business if a defendant takes additional affirmative acts to hamper or impede the officer from learning the defendant’s identity. (Par. 19). The court distinguished its prior opinion in State v. Coffman, 2024-Ohio-1182 (1st Dist.), that held a 20-second chase was "a de minimis interference, rather than conduct that hampered or impeded the officer. (Par. 20). In the present case the defendant’s drunken intransigence combined with his affirmative acts of walking away from the police after being told to stop and swatting away the officer’s hand demonstrated an overall pattern of resistance that rose to the level of obstruction. (Par. 22).

State v. Harris, 2025-Ohio-2796 (1^st. Dist.). A conviction for failing to comply with a lawful police order was affirmed, but convictions for disorderly conduct and obstruction were reversed. The defendant stopped her vehicle parallel to an unrelated traffic stop. When instructed to move her car off the road, the defendant refused. After additional officers were requested and arrived, the defendant moved her car about forty feet away and parked off of the right side of the road. The officer testified the defendant remained in the road after being told to move for about 30-90 seconds, delaying the completion of the traffic stop.

Afte the defendant moved her car she got out of the car and began shouting obscenities to the officers while videoing the encounter. One of the officers testified that during the scene lights came on from surrounding homes and some people came out onto their front porches. There was a small child in the defendant’s car who had not been wearing a seatbelt. The defendant was found guilty of all three charges by a jury trial.

Failure to comply

The defendant was charged under R.C. 2921.331(A) which provides, "No person shall fail to comply with any lawful order or direction of any police officer invested with authority to direct, control, or regulate traffic.”⁷ The defendant stopped her car in a lane of travel to observe a traffic incident. When the officer ordered the defendant to move to the side of the road or away from the scene, she refused, continuing to keep her car stopped in the road. The court noted, "A person is guilty of failure to comply, if, after receiving a lawful order from a police officer invested with authority to direct, control, or regulate traffic, that person failed to comply with that order." Citing State v. Wagenknecht, 9^th. Dist. Wayne, No. 2864 (1994). By refusing to move the car from the road, the defendant failed to comply with a lawful order of the police officer.

Right of allocution at sentencing.

State v. Walker, 2025-Ohio-3049 (6^th. Dist.). (2-1 decision). An attempted forgery conviction was reversed and remanded for re-sentencing due to lack of allocution. The defendant was charged in the municipal court of forgery, a fifth degree felony, and obstructing official business. The charges were based on drafting false Walmart receipts and the defendant’s possession of six false identification cards each with the defendant’s photograph. By agreement, the original charges were dismissed and the defendant entered a no contest plea to attempted forgery, a first degree misdemeanor, in the municipal court. The defendant was given a jail sentence of 90 days with 60 suspended and credit for eight days served. At the time of the sentence the defendant was on post release control from a prior unrelated felony conviction, with nine months of potential incarceration.

At the sentencing the trial court gave both the prosecutor and defenses counsel the opportunity to make a statement. The prosecutor requested 45 days in jail while the defense counsel requested probation in light of the pending parole violation. After hearing from both counsel the court imposed sentence.

On appeal the court noted Criminal Rule 32(A)(1) requires a trial court to address the defendant personally and ask if he or she wishes to make a statement in his or her own behalf or present any information in mitigation of punishment. (Par. 7). The right of allocution is mandatory for both felony and misdemeanor offenses. (Par. 8, citations omitted.). The court noted the right of allocution is not just an empty ritual, but represents a defendant's last opportunity to plead his case or express remorse. (Par. 8, citations omitted.).

Notwithstanding the mandatory requirement, the court recognized the lack of opportunity for a defendant to make a statement at sentencing is not always reversible error and remand for resentencing is not required if the error was harmless. (Par. 9). Harmless error normally occurs when the defendant receives a minimal sentence or a statutorily mandated sentence or it is less likely the defendant’s allocution would have affected the outcome of the case. State v. Reese, 2018-Ohio-2981. (Par. 10). The appellate court also noted exceptions when defense counsel provided the trial court with lengthy and detailed mitigation factors on behalf of the defendant. (Par. 11-12, citations omitted).

The court acknowledged there are no bright-line rules for determining whether a violation of Crim.R. 32(A)(1) is harmless. In the present case the court found defense counsel’s statement in mitigation was brief and less than compelling, arguing only that the defendant was facing a potential longer imprisonment due to the pending parole violation. (Par. 14). The court found it could not presume from the record that the defendant’s opportunity to speak before sentencing would not have made a difference in his sentence. (Par. 14).

The dissent found the lack of an opportunity for allocution was harmless error, noting the requirement was neither jurisdictional nor constitutional. (Par. 16, citations omitted.). The dissent further noted the less likely it is that the defendant's allocution would have affected the outcome of the case, the more likely the courts were to find a Crim.R. 32(A)(1) violation was harmless. (Par. 21, citations omitted.). In the present case the dissent noted the defendant had been charged with a felony offense, was on post release control for another, unrelated felony conviction with prior incarceration in prison, and the lack of any proffered mitigating statements by the defendant, it is not clear any statement by the defendant would have resulted in a lesser sentence.

II. Upcoming Education Opportunities.

Impaired Driving Symposium

FOR JUDGES, MAGISTRATES, PROBATION OFFICERS, AND SPECIALIZED DOCKET TEAMS

Date | Time | Location: Thursday, October 9, 2025 | 8:45 a.m. - 4:30 p.m. | Registration begins at 8:00 a.m.

Embassy Suites – Columbus Airport, 2886 Airport Drive, Columbus, OH 43219 | Phone: (614) 536-0500

Course Description: According to the U.S. Centers for Disease Control and Prevention (CDC), about 1 million impaired driving arrests occur each year in the U.S. However, it’s estimated that more than 100 million episodes of impaired driving take place annually. Approximately 32% of roadway deaths involve drug and/or alcohol impairment. And yet, those who drive while impaired often differ from other criminal offenders in meaningful ways. This symposium will review the latest trends and emerging issues associated with impaired driving. Judicial officers and probation officers will be provided with a clear understanding of the dynamics of impaired driving, the

specific risks associated with repeat offenses, and sentencing and supervision strategies that research has demonstrated are effective with those who drive under the influence.

As a result of this course, participants will be able to:

• Identify the characteristics of impaired drivers;

• Summarize recent Ohio case law and legislative enactments relating to impaired driving;

• Compare the benefits and challenges of starting an OVI court;

Explain what drug tests can and cannot tell us about a person’s substance use and the current best practices for drug testing; and

• Discuss the rates of mental illness among impaired drivers and the importance of early screening.

Faculty: Hon. Patrick Carroll, Retired, Lakewood Municipal Court; Hon. Marianne T. Hemmeter, Delaware County Court of Common Pleas, General Division; Hon. Mary Katerine Huffman, Second District Court of Appeals; Captain Chris Kinn, Field Operations, Ohio State Highway Patrol; Amy Miles, State Toxicologist/Regional Toxicology Liaison-Midwest Region, Wisconsin State Laboratory of Hygiene; Dr. Sarah Nelson, Director of Research, Division on Addiction, Cambridge Health Alliance; Les Schultz, Probation Fellow, American Probation and Parole Association

CLE Hours: Approval has been requested for 6.00 total Judicial College credit hours.

Tuition and Materials: This course is free. Lunch and materials are provided.

Registration: Log in to OhioCourtEDU. Course registration closes three days prior to the course date.Cancellation: If you cannot attend, please cancel three days prior to the course. Late cancellations and “no shows” cost the Supreme Court financially and prevents those on the wait list from attending. Go to My Courses, locate the course, and select Cancel Session.

Accommodations: Embassy Suites – Columbus Airport, 2886 Airport Drive, Columbus, OH 43219 | Room rate is $122.00, plus tax. Parking is free | Call 614-536-0500 or book online before September 25th to receive this special rate.

Questions? Contact Judicial College staff at [email protected].