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Traffic Signals — September 2025

TRAFFIC SIGNALS NEWSLETTER

Dear Colleagues,October 6, 2025

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

Impairment.

1. Alcohol.

State v. Warren, 2025-Ohio-3115 (9^th. Dist.). A conviction for improperly handling firearms in a motor vehicle, with the forfeiture specification due to being under the influence of alcohol, a drug of abuse, or a combination of them, was affirmed. The defendant was a passenger in a car that was stopped for a broken taillight. The defendant was the registered owner of the vehicle and under a license suspension. At the stop the officer attempted to explain the reason for the stop multiple times to the defendant, but the defendant did not seem to understand. When asked by the officer if he had a weapon, the defendant did not answer. For officer safety the defendant was ordered out of the car and a firearm was seen in his waistband. The gun was confiscated.

Dealing with the defendant, the officer smelled alcohol from the defendant’s breath. The defendant’s speech was slow and he was slurring his words. The defendant was asked to submit to the HGN test, but refused. The defendant was arrested for the firearm charge and subsequently found guilty by a jury trial.¹

The defendant asserted on appeal there was insufficient evidence to prove he was under the influence because he "never admitted to drinking alcohol, there were no open containers in the vehicle, [there was] no testimony regarding balance issues, and law enforcement never tested him for any specific cognitive deficiency, either by field sobriety tests or a breathalyzer test." (Par. 13). Rejecting this argument, the court found the alcohol smell on the defendant’s breath, glassy watery eyes, and slurred speech, along with his mental confusion for the stop and refusal to take the HGN test were sufficient to prove impairment.

The court applied the OVI definition for “under the influence.” In doing so, the court noted the officers’ observations were considered along with their experience and training in detecting signs of alcohol impairment. (Par. 17). There is no requirement that officers perform field sobriety tests to prove someone is under the influence and impairment may be proven by eye-witness testimony, without recourse to field sobriety or other tests. (Par. 14, citations omitted.). Moreover, conclusions of intoxication based on observations are not limited to police officers and a lay witness, without special qualifications, may testify whether or not an individual is intoxicated. (Par.15, citations omitted.).

2. Drugs of abuse.

State v. Hinkley, 2025-Ohio-4569 (6^th. Dist.). Separate convictions on different dates for driving under a suspended license and two OVI offenses were affirmed. This appeal centers primarily on one of the OVI offenses.² In response to a call about an erratic driver, the officer located the defendant in a slumped over the steering wheel with the car stopped a few inches from a utility pole. The defendant’s eyes were closed and after repeated knocking on the car window, the defendant woke up. The defendant had trouble getting out of the car and unsteady when he stood up. The HGN test showed six out of six clues. The other tests were not given for concerns of the defendant’s safety.

When taken to the station after his arrest, the defendant continued to be in a drowsy state. EMS was called and recommended to take the defendant to the hospital for treatment, but he declined. A fentanyl patch on his arm was discovered while in custody. The officer testified the defendant’s behavior was consistent with his experience with others who had used fentanyl. A urine sample also confirmed the presence of fentanyl. After a bench trial the defendant was found guilty of OVI.

The defendant asserted on appeal that evidence of fentanyl use was improper. The court held the evidence was admissible as R.C. 4511.19 includes both alcohol and drugs of abuse. The evidence was offered to show proof of fentanyl presence, not impairment by itself. When combined with other evidence, including the observations of an experienced and qualified police officer, expert testimony was not required to link ingestion of fentanyl with impairment. State v. Richardson, 2016-Ohio-4884. (Par. 20).

The defendant also argued the sentence for the three separate convictions was improper. The appellate court noted misdemeanor sentences are discretionary with the trial court and absent evidence to the contrary, a misdemeanor sentence that falls within the permissible statutory limits is presumed to be lawful. (Par. 15. Citations omitted.). The appellate court also noted the trial court is not required to set forth its reasons for imposing sentence. (Par. 15. Citations omitted.)

Author’s Note: An exception applies to a maximum jail sentence, whether individually or consecutively imposed. A maximum jail sentence is limited to the worst forms of the offense or when the defendant’s conduct and response to prior sanctions for prior offenses demonstrate that the imposition of the longest jail term is necessary to deter the offender from committing a future criminal offense. R.C. 2929.22(C). In those situations the trial court should make a record setting out the reasons for the sentence.

Operation and circumstantial evidence.

State v. Howell, 2025-Ohio-3255 (1^st. Dist.). An order granting a motion to suppress was reversed. An officer was called to the scene of a collision at a Cincinnati yacht club where one car struck another car, which in turn was pushed into two other parked cars. All four cars were damaged from the collision. The officer began gathering witness information. The defendant was sitting in a chair a few yards from the collision. When asked for her identification, the defendant went to the car that initiated the crash to retrieve her driver’s license and registration.

During this encounter the officer detected a strong alcohol odor from her and her speech was slurred. She also stumbled when she went to the car to obtain her driver’s license. Because it was dark outside the officer was not able to see the defendant’s eyes. The defendant told the officer she had driven from Columbus and had one drink in Columbus before her trip. Based on the field sobriety test results and surrounding circumstances the defendant was arrested. The defendant was charged with OVI in violation of R.C. 4511.19(A)(1)(a) and failure to maintain reasonable control of a vehicle in violation of R.C. 4511.202(A).

Although the officer asked the defendant if she had been driving the car, the defendant’s response was not asked of the officer at the suppressions hearing. The trial court directed the attorneys to file supplemental briefs on the issue of probable cause whether the defendant was driving. At the post briefing hearing the trial court found the evidence presented at the suppression hearing was not sufficient to infer the defendant was operating the vehicle that crashed into the other car and granted to motion to suppress for lack of probable cause.³

On appeal, the court recognized the amount of evidence necessary to support probable cause is less than evidence to support a conviction. (Par. 14, citation omitted.). In addition, in an OVI case, the prosecution may prove operation by circumstantial evidence as well as direct evidence. (Par. 14, citations omitted.).

Under the reduced evidentiary standard applicable at the probable cause stage, the appellate court found the prosecution presented sufficient evidence at the suppression hearing to support the officer’s belief that the defendant was the driver of the crashed vehicle. (Par. 16). The court based its decision on the defendant’s close proximately to the vehicle after the crash, the defendant going to the specific crashed vehicle when asked to provide identification, and from the officer’s investigation, the lack of any other person who might have driven the car. (Par. 16). From this evidence the court concluded a reasonably prudent person presented with these facts would form a reasonable belief that the defendant operated the vehicle that crashed into the stationary cars.

State v. Franklin, 2025-Ohio-4510. (12^th. Dist.). Convictions for failing to comply with a lawful order of a police officer and driving under suspended license were affirmed. The officer ran a L.E.A.D.S. check on a temporary license tag and found the owner had a suspended driver’s license. As the officer pulled behind the truck that was stopped in a gas station parking lot, the driver drove away at a high rate of speed. The officer put on lights and siren, but the driver/defendant continued to flee, running multiple traffic lights and entering the interstate at speeds between 95 to 110 mph. The officer broke off the chase for safety reason.

The officer went back to the gas station and obtained two pictures of the defendant from the gas station stop which matched the defendant’s BMV photograph. The officer also showed the three photos to a friend of the defendant’s who positively identified the defendant. After a jury trial the defendant was found guilty and a thirty month jail sentences was imposed.

Identification of the defendant.

Affirming the conviction, the appellate court found the prosecution is not limited to proving the identity of the perpetrator by direct evidence and could also prove the identity of the perpetrator by circumstantial evidence. (Par. 14. Citations omitted.). Direct or circumstantial evidence are of equal weight and either or both can be used to sufficiently prove the elements of a crime beyond a reasonable doubt. (Par. 16). The appellate court also rejected the defendant’s assertion on the identification issue as there is no requirement that an accused must be identified as the perpetrator by a witness testifying in court or during a photo lineup. State v. Hubbard, 2023-Ohio-983 (12^th. Dist.). In the present case, based on the testimony of the officer and the other witness, both of whom could positively identify the defendant from photographic evidence, the convictions were supported by sufficient evidence.

Allied offenses.

The appellate court held the offenses of failure to comply with a lawful police order and driving under a suspended license were not allied offenses to require merger for sentencing. Although both offenses arose from the defendant’s driving from the parking lot, the court held defendant’s fleeing the officer at a high rate of speed was separate and distinct from driving under a suspended license. (Par. 19).

In addition to different conduct, the court noted the two offenses created separate, identifiable harms. (Par. 20). The defendant’s failure to comply with the officer’s order created a risk of harm to the police officer, other motorists, and pedestrians in the areas where the high-speed chase had occurred. State v. Colquitt, 2025-Ohio-2727 (12th Dist.). Driving under a suspended license, on the other hand, created a general risk of harm. Moreover, driving under a court ordered suspended license also undermined the judicial system and the trust the public places in court orders, thus causing additional harm to "the integrity of the judicial system." (Par. 21). Finally, while both acts involved deliberate defiance of authority, the failure to comply offense was disregard of a police order while driving under a suspended license involved disregard of a court order. (Par. 21).

Civil claims in OVI arrests.

Woods v. Reynolds, No. 3:22-cv-351, 2025 U.S. LEXIS 171416 (S.D. Ohio 2025). Summary judgment was granted in favor of defendants, arresting officer and two backup officers on the plaintiff’s civil claims of Fourth and Fourteenth Amendment for false arrest, unreasonable search and seizure, malicious prosecution, conspiracy to interfere and/or failure to prevent constitutional violation, failure to intervene, and guilt by association.

One officer began following the plaintiff’s car and as the plaintiff pulled into a residential driveway, the officer got out and asked for identification. During the encounter the officer notice the plaintiff had a strong alcohol odor on his breath, bloodshot eyes, and a box of beer with one open can in the car. The plaintiff refused to provide identification, but backup officers who were called to the scene identified the plaintiff from prior encounters. After determining the plaintiff did not have a valid license the plaintiff was arrested and charged with driving under suspension (R.C. § 4510.11(A))  and  driving under an OVI suspension. R.C. 4510.14(A)).

Due to the arrest the police attempted to impound and inventory the car, but the plaintiff had locked the car and refused to give up the keys. The back up officers were able to open the car with a slim jim. The plaintiff was taken to a hospital, and a search warrant was obtained for a blood sample. The defendant was subsequently indicted on OVI charges. After a hearing on a motion to suppress, the trial court granted the motion and the prosecutor dismissed the case without prejudice on March 22, 2022. The plaintiff filed his civil complaint on December 1, 2022.⁴

Qualified immunity.

For claims based on 42 U.S.C. 1983, for a violation of constitutional rights, the defendant’s actions must be outside the protection offered by the doctrine of qualified immunity. The court set out a three-part test to determine whether qualified immunity applies; 1) did a constitutional violation occur;

2) was the right that was violated a clearly established right of which a reasonable person would have known; and

3) did the plaintiff allege sufficient facts supported by sufficient evidence to indicate that the official's alleged actions were objectively unreasonable in light of clearly established constitutional rights. Williams v. Mehra, 186 F.3d 685, 691 (6th Cir. 1999).

Unlawful arrest

The validity of the arrest was based on probable cause. A claim for false arrest fails when the officer had probable cause to make an arrest. In this case the court noted five separate offenses which were the basis of the arrest including driving with a fictitious license plate.

The court found the trial court’s finding of lack of probable cause was not binding on the 42 U.S.C. 1983 civil claim. The court also distinguished the holding in Chiaverini v. City of Napoleon, Ohio, 602 U.S. 556 (2024)), that a single lawful charge cannot immunize additional malicious charges from being subject to a subsequent civil suit for malicious prosecution. The court in the present case noted the issue in Chiaverini was whether the unlawful conduct caused the implementation of a seizure or extend the seizure. Id. at 564-65. (emphasis in the original). Because the arrest was valid, being based on probable cause, Chiaverini did not apply.

Search of vehicle

The vehicle in this case was searched as part of a routine inventory procedure. Inventory searches are recognized exceptions to the warrant requirement usually imposed by the Fourth Amendment. Colorado v. Bertine, 479 U.S. 367 (1987). The court noted for driving under an OVI suspension, impoundment of the vehicle is required. R.C. 4510.14(B)(1)(d), (2)(d). The plaintiff argued he could not be under a valid license suspension because he did not have a license. The court rejected this argument, citing State v. Lewis, 2020-Ohio-4633 (11^th. Dist.), that a non-existent license can be suspended. In this case the plaintiff’s license and therefore, right to drive on a public roadway was suspended.

Blood draw

The plaintiff argued the blood draw, taken more than three hours after the incident, was unconstitutional. The court noted, however, the statutory time limit on blood samples is waived when there is substantial compliance with the administrative requirements. State v. Hassler, 2007-Ohio-4947. (Other citations omitted.). The plaintiff also asserted the search warrant was obtained by false statement. The court held the plaintiff did not identify any claimed false statements in the search warrant affidavit. Based on the lack of specific statements, the plaintiff could rely on unsupported generalities to continue his case.⁵

Yafeu El v. Paris, No. 1:25CV1146, 2025 U.S. Dist. LEXIS 175275, 2025 WL 2605391 (N.D. Ohio, 2025). Civil complaint dismissed against municipal judge, prosecutor, and police officer in OVI case. This case involved claims for injunctive relief and declaratory judgment to stop an OVI case in the municipal court based on the plaintiff’s claim of being an “Indigenous Moorish American” who is exempt from prosecution because he "lawfully rescinded his driver's license and registration and operated under the Indigenous right to travel" as recognized under the American Declaration on the Right of Indigenous Peoples ("ADRIP"), Article X and XXI.

Under Federal Civil Procedure Rule 12(B)(6), a court has the authority to dismiss a civil complaint “when the allegations of a complaint are totally implausible, attenuated, unsubstantial, frivolous, devoid of merit, or no longer open to discussion." Apple v. Glenn, 183 F.3d 477, 479 (6th Cir. 1999). Claims by plaintiffs that they are exempt from complying with state or federal laws on the basis of asserted sovereign or self-proclaimed Moorish citizenship have been "uniformly rejected by federal courts" and "recognized as frivolous and a waste of court resources. " (citations omitted.). The case was dismissed for lack of subject matter jurisdiction.

The court also noted it was prevented from deciding the case based on the abstention doctrine as set out in Younger v. Harris, 401 U.S. 37, 44-45 (1971). The court noted the plaintiff’s complaint sought to interfere with an ongoing state municipal court matter. The court found the municipal court provided the plaintiff with an adequate opportunity to raise legitimate federal concerns in the context of that state case.

Sentencing factors.

State v. Kidd, 2025-Ohio-3167 (2d. Dist.). Felony OVI conviction with a specification for an additional prison term for repeat OVI offenders were affirmed. The defendant struck a tree and fled on foot, later being found by the police hiding in nearby bushes. The defendant entered a guilty plea to the OVI charge and repeat offender specification with other charges dismissed. The court imposed a sixty month sentence on the OVI conviction consecutive to a five year sentence on the specification. The issues raised on appeal were limited to the defendant’s sentence.

Proportionality and consistency.

R.C. 2929.11(B) requires a felony sentence to be commensurate with and not demeaning to the seriousness of the defendant's conduct, its impact upon the victim, and consistent with sentences imposed for similar crimes committed by similar defendants.⁶ Consistency relates to the sentences in the context of sentences given to other offenders and proportionality relates solely to the punishment in the context of the defendant’s conduct (does the punishment fit the crime). State v. Moore, 2014-Ohio-5135 (8th Dist.). (Par. 16).

Sentencing consistency is not based on a trial court’s comparison to prior sentences for similar defendants and similar offenses. Instead, it is the court’s proper application of the statutory sentencing guidelines that ensures consistency. (Par. 16, citations omitted.). To show a sentence is inconsistent, a defendant must show the trial court failed to properly consider the statutory guidelines and factors.  (Par. 16, citation omitted.).

Principles and purposes of sentencing.

The overriding purposes of felony sentencing include protecting the public from future crime, punishing the defendant, and promoting effective rehabilitation of the defendant. R.C. 2929.11(A). Other factors set out in R.C. 2929.12 includes the seriousness of the defendant’s conduct and the likelihood of the defendant’s recidivism.

The repeat offender specification, R.C. 2941.1413, includes a penalty range of one to five years and applies when the defendant has been convicted of five or more equivalent OVI offenses within the past 20 years, The additional sentence must be served prior to and consecutively to the sentence for the underlying felony.  State v. S., 2015-Ohio-3930. The statutory purpose is to deter people from driving drunk and unnecessarily placing Ohioans at risk and to punish those who continue to do so. State v. O'Malley, 2022-Ohio-3207.

Statements considered in sentencing.

The trial court considered the presentence report, including the defendant’s prior record of eight OVI convictions and numerous other criminal offenses. The trial court, however, is not confined to the statutory factors and could rely on a broad range of information at sentencing. R.C. 2929.12(A). (Par. 15, citations omitted.). A court may consider hearsay evidence, prior arrests, facts supporting a charge that resulted in an acquittal, and facts related to a charge that was dismissed under a plea agreement. State v. Bowser, 2010-Ohio-951 (2d. Dist.).

In the present case the presentence report included statements from a pending protection order proceeding which contained statements of the defendant’s continued intoxication while on bond in this case. The trial court also acknowledged the defendant’s traumatic experiences as an adolescent in mitigation of sentence, but noted there had been many intervening opportunities for treatment.

The court found the sentence imposed was within the statutory range for the felony OVI offense under R.C. 2929.14(A)(3)(a) and R.C. 2941.1413. Although at the higher end of the statutory range, the court noted the sentence was supported by the numerous prior OVI convictions and the defendant’s repeated failure to comply with treatment in the past.

State v. Dukett, 2025-Ohio-4350 (6^th. Dist.). A sentence for convictions for aggravated vehicular homicide and OVI was affirmed. After going through a red light and crossing over railroad tracks, the defendant crashed into a pickup truck. The defendant left the scene and went to a hospital for medical treatment. The other driver was taken to a hospital and died a few days later from her injuries. The defendant entered a guilty plea to aggravated vehicular homicide and operating a vehicle while under the influence of a listed controlled substance or a listed metabolite of a controlled substance in violation of R.C. 4511.19(A)(1)(j)(ii), with the remaining charges dismissed. A sentence of 36 months was imposed on the felony conviction, concurrent with the OVI conviction.

On appeal, the defendant asserted the sentence was contrary to law due to improper weight given by the trial court to the defendant’s extensive but unrelated criminal record. The court of appeals rejected the argument, noting that the defendant was on probation for driving under a suspended license at the time of the crash, twelve lifetime felony convictions, positive drug screen while on pretrial release in this case,⁷ and the defendant’s denial of drug use at the time of the crash even though cocaine and marijuana metabolite were found in the defendant’s system. Although the defendant asserted the trial court improperly weighed the evidence in mitigation, the appellate court held it could not review the trial court's findings and weighing of the factors under R.C. 2929.11 and R.C. 2929.12. (Par. 18, citations omitted.). The court found the sentence was within the statutory range for the offense, based on the information contained in the pre-sentence report, in compliance with the overriding purposes and principles of sentencing under R.C. 2929.11, and considered the seriousness, recidivism and other factors under R.C. 2929.12.

Failure to comply with lawful police order.

1. scope of lawful police order.

State v. Wilburn, 2025-Ohio-4312 (12^th. Dist.). A conviction for failure to comply with an order or signal of a police officer was affirmed with remand to correct judgment entry. When two uniformed officers responded to a "shots fired call" near a bar, they were directed to the defendant sitting in his car. When the defendant rolled down his window, the officer immediately noticed a strong odor of alcoholic beverage coming from inside the vehicle and observed the defendant had bloodshot glassy eyes, slurred speech, and extremely slow movements. The defendant refused to give his name or get out of the car after multiple requests. After one officer opened the car door, the defendant got out of the car. As he drew closer to the officer, the alcohol odor on the defendant’s breath was stronger. Due to the defendant’s combative attitude, field sobriety tests were not offered and the defendant was arrested for OVI. The defendant refused to get into the police car and had to be physically put into the back of the car.

The defendant was charged with OVI and failure to comply with a lawful police order. The jury returned a not guilty verdict on the OVI charge and a guilty verdict on the failure to comply charge. On appeal the defendant asserted the conviction was not valid because he did not disobey an order relating to the control and regulation of traffic. The defendant did not dispute the evidence but argued R.C. 2921.331(A) did not prohibit noncompliance with a police officer's orders unrelated to the control and regulation of traffic. (Par. 6). The issue before the court was the scope of R.C. 2921.331(A). The appellate court reviewed decisions from other appellate districts.

Split of appellate districts.

State v. Redd, 2004-Ohio-4689 (2d. Dist) reversed a failure to comply conviction in which the defendant refused to leave an open parking lot while watching his friend being arrested for OVI. The court in Redd construed R.C. 2921.331(A) as prohibiting the failure to comply with the lawful order of a police officer relating to the direction, control, or regulation of traffic. The court found the “lawful order” was one that involved the defendant’s act or omission in operating a motor vehicle which, by law, an officer is charged with authority to direct, control, or regulate.

State v. Wagenknecht, 9^th. Dist. No.2864, (June 29, 1994) affirmed a failure to comply conviction when the defendant was stopped for a speeding violation and after being told to remain in the car, got out and walked away. The court found R.C. 2921.331(A) did not require a direct relationship between the order given and traffic regulation. Although the officer’s authority must be derived from the traffic regulation, the order given was not required to directly relate to a traffic matter.

Comparing the two decisions, the court in Wilburn noted that although both Redd and Wagenknecht, agreed the police officer must be engaged in traffic regulation at the time the order is given, The Redd decision required the order to relate to the direction, control or regulation of traffic while the court in Wagenknecht held the order related to any matter encompassed by the statute as long as the officer's order derives from the officer's authority to regulate traffic. (Par. 10).

State v. Thigpen, 2016-Ohio-1374 (8^th. Dist.), addressed the differences and concluded a police officer's "authority to direct, control, or regulate traffic exists by virtue of the position, regardless of whether the police officer is actually engaging in traffic direction, control, or regulation." (Par. 12). The court in Thigpen held nothing in the plain language of R.C. 2921.33(A) limited it solely to orders or signals of police officers actively engaging in traffic direction, control, or regulation. The language in R.C. 2921.331 “invested with authority to direct, control, or regulate traffic, was based on the definition of “police officer” in R.C. 4511.01, and not as a limitation of the type of order.⁸ The court in Thigpen concluded the duty to comply exists even if the police officer's order is not made in the context of enforcing any traffic law.

The court in Wilburn adopted the holding in Thigpen. The officers in this case were in uniform, driving marked police cars and were invested with the authority to direct, control, and regulate traffic. The defendant’s lack of compliance with the officers’ orders was sufficient to uphold the conviction.

The court also noted that notwithstanding the split of case decisions interpreting R.C. 2921.331(A), the officers were engaged in an OVI investigation which was a traffic matter at the time. (Par. 15).

Clerical error.

The appellate court noted the trial court’s judgment showed the defendant entered a guilty plea to the charge, when in fact he was convicted by a jury. When clerical errors occur, Criminal Rule 36, permits a court to make a nunc pro tunc entry to reflect actions that were taken but not correctly recorded. (par. 17, citations omitted.). The appellate court remanded the case to the trial court for a nunc pro tunc order to correct the record.

2. Risk of harm.

State v. Horn, 2025-Ohio-492 (5^th. Dist.). Convictions for OVI and failure to comply with a lawful police order were affirmed. The defendant came to the officer’s attention by driving at night without headlights. With first a spotlight, then overhead flashing lights, and finally a siren, the defendant continued to drive for thirteen miles with multiple traffic violations before finally being pulled over by multiple officers. Getting out of his van the defendant could not keep his balance nor understand the officer’s instructions. The defendant was disheveled, smelled of alcohol, had slurred speech, glassy bloodshot eyes, and had urinated on himself. When asked at the police station if he would submit to a chemical test, the defendant responded, “he would just take a nap instead.” He then removed his shirt, laid down on a bench, and passed out. (Par. 4.) After numerous attempts and the use of smelling salts, the defendant was awakened.

The defendant was charged with OVI and failure to comply with a lawful police order. After a trial the defendant was found guilty of both charges. The defendant appealed, only contesting the failure to comply conviction. On appeal the defendant asserted he did not create a substantial risk of serious physical harm to persons or property as set out in R.C. 2921.331(C)(1)(5)(ii).

The court found substantial risk of harm was shown by continued driving without headlights and with multiple troopers attempted to stop him, followed a truck too closely, and created a risk of secondary crashes due to other motorists slowing down in response to the trooper's lights and sirens. (Par. 21). In addition, the need for the troopers to create a blockade also created a substantial risk of serious physical harm to himself, other motorists, and the troopers involved in the stop. (Par. 23). Added to this, driving while heavily intoxicated which creates a separate risk of harm. The prosecution was not required to prove the defendant’s conduct actually or almost caused serious physical harm to demonstrate substantial risk, because the lack of a collision is irrelevant and fails to speak to the level of risk. State v. Love, 2004-Ohio-1422, ¶ 19 (9th Dist.). (Par. 23).

Evidence of marijuana and probable cause.

1. Marijuana odor

State v. Boyd, 2025-Ohio-3248 (6^th. Dist.). Convictions for aggravated possession and drug trafficking methamphetamine, cocaine, and fentanyl were affirmed. The car was initially stopped for speeding. The defendant was a rear seat passenger. The car had passed the officer going over the speed limit, but slowed down after passing the officer and continued to drive slowly.

At the stop the officer smelled burnt marijuana in the car and later, raw marijuana also. The court found the odor and presence of marijuana was sufficient probable cause to search the trunk where the duffle bag of sealed, bagged methamphetamines, cocaine, and fentanyl were found.⁹ The court cited numerous cases upholding a search of the entire vehicle based on the odor of marijuana. The incident in this case occurred on January 2, 2022, almost two years before the passage of the Use Cannabis Act (recreational marijuana). R.C. Chap. 3780.The court cautioned that future cases involving the smell of marijuana may be different now that marijuana is legally accessible. (Fn. 1).

State v. Waters, 2025-Ohio-4479 (1^st. Dist.). An order overruling a motion to suppress and firearm and drug possession convictions were affirmed. The defendant was stopped in June, 2023 for leaving the curb without a turn signal in violation of the local ordinance. At the stop marijuana was smelled from the car and the defendant admitted smoking marijuana earlier while behind the wheel. Based on that admission the defendant was asked to get out of the car so it could be searched. A locked bag was located on the backseat floor containing a bottle of pills, fentanyl, and a firearm. The defendant was cited for a tinted license plate cover and the drug and firearm felony charges. After the court overruled the motion to suppress, the defendant plead no contest.

Traffic stop

A traffic stop is reasonable when an officer has either probable cause to believe that a traffic violation has occurred or reasonable suspicion that the driver has committed or is committing a crime, including a minor traffic violations. (Par. 11, citation omitted). Although the appellate court questioned the defendant only being cited for the license plate violation, with the failure to signal charge not mentioned in the police report and raised for the first time at the suppression hearing, the court determined it was an issue of credibility that was decided by the trial court. (Par. 15).

Search based on smell of marijuana.

The defendant contested the ongoing validity of the holding in State v. Moore, 90 Ohio St. 3d 47 (2000), of the smell of marijuana as a basis to search a car without a warrant. The traffic stop in this case, however, occurred before recreational marijuana was adopted in Ohio and therefore, would not affect the probable cause determination. The determination of probable cause is based on the facts known to the officer at the time of the stop and at that time, recreational marijuana was still illegal. See also, State v. Wright, 2024-Ohio-1763 (1^st. Dist.) (Par. 21).

Author’s Note: Activities by an adult relating to recreational marijuana alone do not constitute sufficient basis for conducting a field sobriety test on the individual or for suspending the individual's driver's license. To conduct any field sobriety test, a law enforcement officer must have an independent, factual basis giving reasonable suspicion that the individual is operating a vehicle under the influence of adult use cannabis or with a prohibited concentration of marijuana in the person's whole blood, blood serum, plasma, breath, or urine. R.C. 3780.33(E) (effective 12//7/2023).

State v. Brefford, 2025-Ohio-4436, (10^th. Dist.). An order overruling a motion to suppress and convictions for aggravated robbery, assault with firearm specification, obstructing official business with firearm specification, possession of cocaine with firearm specification, and carrying a concealed weapon were affirmed. The defendant was on his bike stopped in the middle of the street blocking traffic. When the officer approached, the defendant made a U-turn in the street. The defendant was shirtless, wearing a backpack on his back and a smaller bag on his stomach.

The officer’s approach to the defendant began as a consensual encounter about safety concerns, but moved to a criminal investigation when the officer smelled raw marijuana coming from the defendant. When the defendant denied any marijuana possession three times and appeared to leave, a physical altercation followed with a gun falling to the pavement. The gun, previously unseen by the officer, fell from the defendant’s waistband. After ultimately being arrested, several small baggies of marijuana and a scale were recovered from the smaller belt bag several large baggies of marijuana, crack cocaine, and money from found in the backpack. (Par. 30).

The issue in the motion to suppress, and on appeal concerned reasonable, articulable suspicion to stop the defendant under Terry v. Ohio, 392 U.S. 1 (1968) and probable cause for the arrest. Both the reasonable suspicion and the probable cause were based in part on the smell of marijuana. In State v. Moore, 2000-Ohio-10, the Ohio Supreme Court held the smell of marijuana provided probable cause to search a car. Moore was decided when all marijuana was illegal. Now both medical and recreational marijuana are conditionally legal under Ohio law. Although the court raised the question of the continued viability of the Moore decision, the court also recognized marijuana possession was conditionally permitted and noncompliance with the conditions may give rise to illegal possession. ¹⁰

In the present case the court noted the smell of marijuana may not, by itself, be sufficient to establish probable cause to conduct a search. From the defendant’s denial of marijuana smelled by the officer in close proximity to the defendant it would be reasonable to conclude that marijuana was being illegally possessed. (Par. 38). Combined with other factors, including being in a high drug area, reports from other officers of multiple hand to hand transactions, and the officer’s training, education, and experience, the court found the officer had reasonable suspicion to search the defendant.¹¹

2. Marijuana possession.

State v. Hill, 2025-Ohio-**** (1^st. Dist.). An order overruling a motion to suppress was reversed. The defendant was stopped on October 3, 2024 for making a left hand turn without a turn signal. The officer testified the defendant appeared nervous at the stop. The defendant told the officer she did not have a firearm. Checking the defendant’s criminal record, the officer discovered the defendant had an extensive criminal history including violent offenses. Returning to the defendant’s car, the officer had the defendant get out of the car to conduct a pat down for weapons. No weapons were discovered, but after the pat down the officer noticed a bulge in the defendant’s front pocket. The defendant pulled a small bag of marijuana out of her pocket. Based on the discovered marijuana, the officer proceeded to conduct a full search of the defendant in which the cocaine was found on the defendant.

The trial court overruled the motion to suppress, finding the discovered marijuana was probable cause for the search. The defendant entered a no contest plea to the cocaine charge and was assessed court costs.

On appeal, the court reversed, holding there was a reasonable suspicion for the initial pat down when an officer confronting a person with a violent criminal history and observes a bulge in the person's pocket is justified in suspecting the person might be armed. After the pat down with no discovery of any weapons, the officer continued to investigate the defendant’s pockets. The court found the officer could inquire about the bulge in the front pocket, noting that during a Terry stop, an officer is permitted to ask a moderate number of questions designed to allay or confirm the officer's reasonable suspicions. State v. Mapson, 2006-Ohio-5248 (8th Dist.). 

The court stated, however, the discovery of the marijuana was not probable cause to continue the search of the defendant. At the time of the stop recreational marijuana was legally permitted in Ohio. R.C. Chap. 3780, effective December 7, 2023). The court found the possession of marijuana would not lead a reasonably prudent person to believe that there was a fair probability that the defendant’s pockets contained evidence of criminal activity. Consequently, the order overruling the motion to suppress was reversed.

Traffic violation as valid stop.

State v. Stevenson, 2025-Ohio-44431 (5^th. Dist.). An order overruling a motion to suppress and drug conviction affirmed. The defendant was stopped for crossing over the stop bar at a stop sign. The defendant made a complete stop after all four wheels crossed the painted stop bar. After the trial court overruled a motion to suppress, the appellate court affirmed, finding the traffic violation was grounds for a valid stop.

R.C. 4511.43(A) requires a driver when approaching a stop sign and a clearly marked stop line to stop at that line. The defendant did not dispute he stopped after the car crossed the stop bar line, but asserted it was not sufficient to permit a valid traffic stop. In response the court cited numerous appellate decision in which the validity of a traffic stop was upheld due to a stop bar violation. (Par. 9-10, citation omitted). The court noted, even if the officer had ulterior motives to stop the defendant, the timing of the stop and any potential ulterior motives are irrelevant to the constitutional analysis when the officer observed an actual traffic violation. City of Dayton v. Erickson, 1996-Ohio-431.

State v. Foreman, 2025-Ohio-3307 (5^th. Dist). An order granting a motion to suppress was reversed. The officer saw a number of people get into a car at a rest stop, followed the car, ran the license plate, and seeing the registered owner was under suspension, stopped the car. As the officer approached the car he discovered the defendant/driver was not the registered owner of the car. The officer asked the defendant/driver for his driver’s license, which was also suspended. The other passengers in the car also had suspended driver’s licenses. The vehicle was searched with the consent of all of the occupants and drugs and a syringe were found.

The appellate court found the officer had a reasonable suspicion to stop the car based on the suspended license status of the registered owner. The traffic stop is reasonable as long as "the officer lacks information negating an inference that the owner is the driver of the vehicle."  Kansas v. Glover, 589 U.S. 376, 380 (2020), quoting United States v. Cortez, 449 U.S. 411, 417-418 (1981).(Par. 12). Relying on State v. Dunlap, 2024-Ohio-4821, the court held a lawfully initiated a traffic stop included asking the driver for a driver's license even when the driver is not the registered owner. (Par. 13).

Field sobriety test procedures.

1. Suppression order affirmed.

State v. Miller, 2025-Ohio-4328 (11^th. Dist.). Affirming the trial court’s order granting a motion to suppress. The defendant was seen by the officer going 59 MPH in a 45 MPH zone. The officer also testified the defendant crossed over the double yellow line. The defendant was pulled over and when the officer approached him, the officer smelled alcohol coming from the defendant. The officer also noted the defendant had bloodshot, red, glassy eyes and slurred speech. The defendant was wearing a wristband and handstamp from a local bar. The officer administered the HGN and walk and turn tests and based on the results, arrested the defendant.

The defendant was charged with improperly handling firearms in a motor vehicle in violation of R.C. 2923.16 and two counts of OVI in violation of R.C. 4511.19(A)(1)(a) and (d).

After an evidentiary hearing on the defendant’s motion to suppress, the trial court found insufficient evidence of both a reasonable suspicion for the defendant to take the field sobriety tests and probable cause to arrest the defendant for OVI. The motion to suppress was granted and the prosecution filed a timely appeal.

In reviewing the trial court’s order, the appellate court noted the trial court as the trier of fact, evaluates and determines the credibility of the witnesses and the appellate court

must accept the trial court's findings of fact if they are supported by competent, credible evidence. State v. Burnside, 2003-Ohio-5372. (Par. 10). In the present case the trial court found the officer’s testimony was inconsistent with the officer’s video and multiple deficiencies with the field sobriety tests.

The trial court pointed to multiple deficiencies in the field sobriety tests. For the HGN test, the police car’s overhead blue flashing lights remained on with the defendant’s back to the passenger side of the car. As a result, there was a blue strobe lights on the defendant’s face during the tests. The court noted the NHTSA manual requires the defendant to be turned away from the rotating or strobe lights to avoid optokinetic nystagmus, which may affect the test results. (Par. 15, citations omitted). The appellate court deferred to the trial court’s finding that the HGN was not performed in compliance with the NHTSA requirements and the test results were not valid.

For the walk and turn test, the court noted the defendant was not given the opportunity to remove his heeled cowboy boots, which impacted how he walked. In addition, the court found the clues listed by the officer were not present in the video.

The trial court found the officer’s testimony on many of the issues was either inaccurate or lacked credibility. The defendant denied consuming alcohol and stated he went to the bar to pick up a friend. The court noted from the video the defendant was cooperative, attentive, and answered all questions posed to him articulately. (Par. 6). Concerning other issues, the court found the alcohol smell could have come from the passenger who the defendant had picked up and was in the car at the time. Also, the court found the red, bloodshot eyes could not be seen in the video during the HGN tests.

The appellate court noted that probable cause to arrest for an OVI can exist even in the absence of field sobriety tests or where the tests' results have been excluded. (Par. 17, citation omitted). In the present case, accepting the trial court’s findings of fact including inconsistencies between the video and the officer’s testimony, the court affirmed the trial court’s conclusion of lack reasonable suspicion to conduct field sobriety tests and probable cause for the defendant’s arrest.

2. Denial of suppression motion affirmed.

State v. Ponce-Suares, 2025-Ohio-4480 (1^st. Dist.). An order overruling a motion to suppress and OVI conviction were affirmed. After veering into the officer’s traffic lane, almost hitting the police cruiser, and swerving after passing the officer, the defendant was pulled over. At the stop the officer saw the defendant had bloodshot, watery eyes and the officer smelled alcohol coming from inside the car. Neither the defendant/driver nor the passenger spoke English. The officer used Google translator to communicate with the defendant.

The officer attempted to conduct the HGN test, but the defendant could not understand and kept moving his head. At one point the officer had the defendant’s put his hands to his chin to keep the defendant’s from moving his head. Despite the lack of understanding the officer recorded six clues from the HGN.¹² The officer also attempted the walk and turn test, but the defendant had difficulty understanding the instructions which were repeatedly given to him. A portable breath test was administered with a .17 alcohol level.

The trial court denied the motion to suppress finding the HGN and walk and turn tests were done in substantial compliance with the NHTSA requirements and combined with other factors, overruled the motion to suppress.¹³ On appeal, the court did not directly address the issues regarding the validity of the field sobriety tests or the language barrier. Reviewing the totality of the circumstances, the court found sufficient indicia of intoxication to support probable cause to arrest for OVI, including erratic driving, smell of alcohol, and bloodshot eyes. (Par. 34). The court noted any failure to instruct the defendant in substantial compliance with NHTSA standards would not negate the other factors that existed during the stop, as FSTs are not necessary to establish probable cause to arrest for an OVI. State v. Sanders, 2014-Ohio-511 (1^st. Dist). (Par. 32).

Expungment/sealing issues.

State v. J.B. 2025-Ohio-3143 (8yh. Dist.). (2-1 decision). An order dismissing expungment proceeding due to the applicant’s failure to submit to a drug test was reversed. The defendant was convicted of carrying a concealed weapon and receiving stolen property. The defendant had a history of drug treatment. The trial judge had a policy to drug test anyone applying to expunge a conviction. The trial court explained there was a gap in monitoring the applicant since the time probation had expired. The purpose of the drug test was to determine if the applicant was rehabilitated in accordance with R.C. 2953.32(D)(1)(c).

The trial court conducted a hearing with numerous, unrelated applicants and at the conclusion of the hearing directed the applicants to submit to a drug screen. The applicant objected to the drug screen. The defendant tested positive for amphetamines and based on that drug screen, the trial court found the defendant was still violating the law by consuming illegal drugs and dismissed the expungement proceeding. (Par. 9).

On appeal the court held the trial court did not have the authority to order applicants to submit to drug testing prior to determining if the applicant was rehabilitated. The court found although R.C. 2953.32(C) requires a court to “determine whether the applicant has been rehabilitated to the satisfaction of the court," there is nothing in this language that can be construed as conferring authority to a trial “court to order applicants to submit to a drug test as a condition for expungement.” (Par. 21).¹⁴

The court noted that without some restraint, an applicant’s social media accounts, internet history, or search or home or car could also be required by the trial court. (Par. 22). Instead, while a presentence report specifically provides authorization for a drug screen, R.C. 2951.03(A)(1), there is no comparable statutory authority for a drug screen in a sealing/expungement proceeding. The court further noted that courts that conduct drug screens in other states are done by specific statutory authority in a sealing/expungment proceeding. (Par. 30).

The dissent asserted prohibiting a drug screen precluded “the trial court from having access to any information upon which it could determine that the offender has been rehabilitated beyond a criminal history.” (Par. 37). Recognizing, expungement is a privilege and not a right, the dissent noted a drug test was a minimal intrusion that yielded timely information to demonstrate an applicant's law-abiding lifestyle. (Par. 37).

The dissent also noted that the issue decided by the majority related to the absence of any statutory authorization requiring submission to a drug screen, rather than determining the scope of the trial court's authority under R.C. 2953.32(C) to direct the probation department “to make inquires and written reports as the court requires concerning the applicant.” (Par. 42-44).

Procedural issues.

1. Scope and burden of proof in suppression hearing.

State v. Gaines, 2025-Ohio-**** (1^st. Dist.). An order overruling a motion to suppress and conviction for physical control of a motor vehicle under the influence of alcohol were affirmed. Officers responded to investigate a woman slumped over the steering wheel of a parked car. There was a smell of alcohol on the defendant’s breath and vomit on the defendant, her car, and the pavement. The defendant was semiconscious and slurred her words when speaking to the police. The defendant admitted to the officer she had been drinking in a bar. Based on the field sobriety tests the defendant was arrested for physical control of a motor vehicle under the influence. After a hearing on a motion to suppress, which was overruled, the defendant was found guilty in a bench trial.

Regarding the motion to suppress, the issue on appeal was the officer’s compliance with the NHTSA Manual. The trial court took judicial notice of the 2023 NHTSA Manual at the suppression hearing. The defendant filed a "shotgun" or boilerplate motion to suppress which did not raise specific challenges to any of the field sobriety tests. Consequently, the prosecution’s burden to show substantial compliance was general and slight. A defendant may shift such a general burden by cross-examining the State's witnesses to identify specific facts supporting noncompliance. When detailed facts are elicited to shift the burden, the prosecution must produce clear and convincing evidence establishing substantial compliance. (Citations omitted.)

In the present case the officer’s testimony varied from his prior written report. The officer explained the discrepancies. The court found the discrepancies were the result of bad record keeping but did not affect the validity of the field sobriety tests. In one instance, when the officer had the defendant for one minute instead of thirty seconds as required by the NHTSA Manual, the court found it was harmless error in view of the totality of the evidence presented.

Author’s Note: R.C. 4510.13(A)(5) was amended, effective April 9, 2025 increases the “hard time” before limited driving privileges can be granted when the defendant has a prior physical control conviction within ten years of the date of the current OVI charge.

2. License suspension does not require class specification.

State v. Morgan, 2025-Ohio-4572 (6^th. Dist.). Convictions for aggravated vehicular homicide and of failure to stop after an accident were affirmed.¹⁵ By agreement of the parties, the vehicular homicide charge was amended to delete the reference to a suspended license, reducing the offense from a second degree to a third degree felony. The defendant entered no contest pleas to the amended homicide charge and the leaving the scene misdemeanor charge. The court imposed an aggregate jail sentence of sixty months and a lifetime driver’s license suspension on the felony conviction and a three year suspension on the misdemeanor conviction .

On appeal the defendant asserted the driver’s license suspensions were not valid because the judge only gave the length of each suspension and not its specific classification. The range of suspensions for each class is set out in R.C. 4510.02. Both convictions required mandatory license suspensions.

Rejecting this assertion, the appellate court recognized that different class suspensions have some overlapping time periods, but the defendant was not prejudiced by the lack of specific classifications in the judgment entry. (Par. 16). The statutory requirements for modifications to a license suspension under R.C. 4510.54 are based on the length of the suspension and the underlying offense, not the class of the suspension.  As such, a class one suspension under the original felony charge and a class two suspension under the amended felony charge had no relevance to the suspension itself. (Par. 16). The suspensions imposed by the court were within the statutory range. The court is not required to set out the specific classification of the suspension, only the length of the suspension.

3. Waiver of appeal and guilty plea.

State v. Brooks, 2025-Ohio-3292 (2d. Dist.). Felony OVI conviction was affirmed. After an adverse ruling on a motion to suppress, the defendant entered a guilty plea to the felony OVI charge. On appeal the defendant asserted the guilty plea was invalid because the trial court did not inform him at the time of the plea that a guilty plea waives the right to challenge the suppression ruling on appeal. The court held Criminal Rule 11(C) does not require a trial court to advise the defendant of that consequence. (Par. 7, citations omitted.). The absence of this advisement does not undermine the knowingly, intelligent, and voluntariness of the plea. The issue of appealability of the suppression order was not raised at the time of the plea and therefore, the trial court was not obligated to explain it to resolve any misunderstanding the defendant may have had.

The court noted that the case involved a negotiated plea with the dismissal of two counts of cocaine possession, two counts of aggravated drug possession, and one count of attempted evidence tampering. In the absence of any evidence that the State would have made the same concessions in exchange for a no-contest plea, the record did not support any finding that defense counsel was ineffective.

4. Restitution.

State v. Reynoso, 2025-Ohio-3119 (11^th. Dist.). A conviction of reckless operation of a vehicle was affirmed, but reversed for resentencing on the issue of restitution. The defendant was initially charged with leaving the scene of a collision (hit/skip). The defendant entered a guilty plea of reckless operation, a fourth degree misdemeanor. The trial court conducted a restitution hearing at the time of sentencing. The victim and prosecutor did not appear for the hearing, but the victim advocate appeared and presented rental car receipts as proof of restitution.

To clear up inconsistencies with the receipts, the court contacted the victim by phone. The victim provided additional information to the court, but was not sworn as a witness and the statements were not made under oath. The victim did not provide the court with an estimate of either the value of the vehicle prior to the collision or the cost of repair. The receipts were for third party rental vehicles, ride-share apps, and public transportation. The receipts were not admitted into evidence or made part of the record on appeal. The trial court awarded restitution of $4,918.66 based on the receipts over the objection of the defendant who asserted restitution should be made based on the damage to the vehicle.

On appeal the court noted a restitution award is reviewed on an abuse of discretion standard, which includes 1) applying the wrong legal standard, 2) misapplying the correct legal standard, or 3) relying on clearly erroneous findings of fact. (Par. 9. Citations omitted.). The amount of restitution cannot be based on speculation and a trial court abuses its discretion when the amount of restitution is not supported with evidence. State v. Palmer, 2024-Ohio-1445. (Par. 10). The victim or survivor has the burden to prove by a preponderance of the evidence the amount of restitution sought. (Par. 12, emphasis added by the court.).

Putting aside the appropriate measure of damages, the appellate court found because the victim’s statements were not sworn and the receipts were not admitted into evidence, there was no competent evidence in the record to support the restitution award. The court acknowledged that the rule of evidence does not apply to sentencing hearings in which the amount of restitution was determined. Evid. R. 101(D)(3). Although unsworn statement may be made at a sentencing hearing, because of the victim’s burden of proof, competent evidence is required to support a restitution order. (Par. 26). The case was remanded for an evidentiary hearing on the issue of restitution.

5. Mootness.

City of Bowling Green v. Al-Murshidy, 2025-Ohio-3302 (6^th. Dist.). Appeal from conviction of driving while texting under R.C. 4511.204 was dismissed as moot. The defendant was found guilty of the charge first by pleading no contest before the magistrate and after objecting to the magistrate’s finding, the defendant was found guilty at a bench trial. In both situations the defendant was assessed court costs only which were paid the same day. The defendant appeals the conviction.

An appeal from a misdemeanor conviction is moot if the defendant voluntarily serves the sentence unless the defendant demonstrates that he will suffer some collateral disability or loss of civil rights arising from the conviction. State v. Golston, 71 Ohio St. 3d 24 (1994). (Par. 6). In order to preserve the right of appeal, a defendant must seek a stay of execution of judgment.

A risk of collateral disability arising from the conviction is an exception to the mootness doctrine. "A collateral disability is an adverse legal consequence of a conviction or judgment that survives despite the court's sentence having been satisfied or served." In re S.J.K., 2007-Ohio-2621. (Par. 7). The court recognized that the penalty for a subsequent conviction is enhanced by a prior conviction, but the possibility of an enhanced penalty for a future conviction is not a collateral disability. State v. Berndt, 29 Ohio St.3d 3 (1987). (Par. 9). Similarly, speculation of possible, unspecified employment consequences is not enough to show a collateral disability. The appeal was dismissed as moot.