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Traffic Signals — November 2025

TRAFFIC SIGNALS NEWSLETTER

Dear Colleagues,December 16, 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 contact me with any feedback.

Patrick Carroll, retired judge

Ohio Judicial Outreach Liaison to the ABA

[email protected]

(216) 403-5521

Summary of cases, November, 2025.

Release of Medical Records.

State v. Russell, 2025-Ohio-5306 (6^th. Dist.). An order suppressing the defendant’s medical records obtained by a grand jury subpoena was affirmed. The defendant was indicted on two counts of aggravated vehicular assault based on alcohol/drug use. As part of the investigation the prosecutor issued a subpoena to the hospital where the defendant was treated to obtain diagnosis of any injury from the collision and toxicology reports.¹ There was no blood draw or urinalysis performed at law enforcement's request or order. On a motion to suppress the trial court found that the warrantless search of the defendant’s medical records violated his Fourth Amendment right to be free from unreasonable searches and seizures. The prosecutor raised numerous grounds on appeal.

Statutory privilege and constitutional right.

The court noted there was a "difference between physician-patient privilege, which applies to admissibility of (properly obtained) evidence at trial, and the Fourth Amendment protection against the government's unauthorized invasion into the patient's medical records, which applies to the government's ability to obtain the evidence."  quoting State v. Little, 2014-Ohio-4871 (3d Dist.). (Par. 6). The court found the issue on appeal was a constitutional, not a statutory right. A search occurs when there is an official intrusion into a sphere in which there exists a reasonable expectation of privacy with an intent to obtain information." (Citations omitted.) State v. Jackson, 2022-Ohio-4365

Reasonable expectation of privacy with medical records.

The issues are whether the defendant had a “subjective expectation of privacy and whether that expectation is one that society recognizes as reasonable." State v. Eads, 2020-Ohio-2805, ¶ 12 (1st Dist.). Citing Ferguson v. City of Charleston, 532 U.S. 67, 78 (2001), the court noted  "[t]he reasonable expectation of privacy enjoyed by the typical patient undergoing diagnostic tests in a hospital is that the results of those tests will not be shared with nonmedical personnel without her consent." Although the government has a compelling interest in combating impaired driving, an OVI suspect's expectation of privacy should not be diminished based on the nature of the offense charged. Missouri v. McNeely, 569 U.S. 141 (2013) (Par. 12, citations omitted.). From a review of other appellate decisions in Ohio, the court found a defendant/patient has a reasonable expectation of privacy with medical records held by a hospital pertaining to tests for drugs and alcohol. (Par. 14, citations omitted.).

Application of R.C. 2317.022.

R.C. 2317.02(B) creates an exception to the physician/patient privilege when the defendant is under criminal investigation and a law enforcement officer requests the “results of any test administered to the specified person to determine the presence or concentration of alcohol, a drug of abuse, a combination of them. . .” R.C. 2317.022(B) sets out the procedure for obtaining the tests results, including a statutory form to be filled out by the law enforcement officer. The court found R.C. 2317.02 could not be used by the prosecution to justify the medical records obtained because the prescribed form was not used and the records sought and obtained went far beyond the limited test results permitted by R.C. 2317.02. (Par. 20).

The court also noted R.C. 2317.02 specifically sets forth an exception to medical records when it is "specifically prohibited by any law of this state or of the United States," which would include the Fourth Amendment. R.C. 2317.02 and R.C. 2317.022 could not be used to strip away the protections of the Fourth Amendment." State v. Eads, 2020-Ohio-2805 (1st Dist.).

Third party waiver.

State v. Russell, 2025-Ohio-5306 (6^th. Dist.). In Carpenter v. United States, 585 U.S. 296 (2018), the Court set out a two part test when an individual has a reasonable expectation of privacy in information shared with another.

1. The nature of the particular documents sought to determine whether there is a legitimate "expectation of privacy" concerning their contents.

2. whether the third party's possession of the document resulted from 'voluntary exposure' by the person with the asserted privacy interest

585 U.S. at 308.

The court in Russell, found the third-party doctrine was not applicable regarding the nature of the documents obtained because they went beyond the results of a drug or alcohol test to include all medical records relating to injuries in the collision toxicology reports. Moreover, citing State v. Eads, the medical records regarding alcohol and drugs "exposed too much about [a defendant's] private life" and thus, are "deserving of protection because of their 'deeply revealing nature." Eads at Par. 32-33.

The court also noted the medical records were not voluntarily exposed by the defendant. (Par. 26). Rather, the medical records were routine tests as part of the hospital protocol to collect information to collect information required for appropriate medical treatment. (Par. 26). As such the third party disclosure waiver doctrine did not apply.

Sufficiency of subpoena.

Citing Carpenter v. United States, the court noted a warrant is required when the defendant has a legitimate privacy interest in records held by a third party. Carpenter at 318-319.The court in Carpenter found when an individual “seeks to preserve something as private,” and his expectation of privacy is one that society is prepared to recognize as reasonable, a search warrant supported by probable cause is required. 585 U.S. at 304 (Par. 28). The court in Russell found the issuance of a subpoena does not permit the State to avoid the requirements of the Fourth Amendment.

Good faith exception.

The good faith exception to the exclusionary rule permits admission of evidence if a law enforcement officer believes in good faith the actions are in compliance with the Fourth Amendment. State v. Castagnoga, 2015-Ohio-1565. (Par. 31). See also, United States v. Leon, 468 U.S. 897 (1984). This included situation when the officer conducted a search "in objectively reasonable reliance on binding judicial precedent.” Davis v. United States, 564 U.S. 229, 239 (2011). The court found it was not reasonable to rely upon the subpoena in light of the state of the law at the time the subpoena was issued, including the decision in Carpenter and other cases. The court further noted the subpoena was prepared by a prosecutor, not a police officer. A prosecutor may properly be charged with knowledge of the state of the law and due to existing law, and therefore it was not reasonable for the prosecutor to rely upon a subpoena.

Sufficiency of Evidence

1. Evidence of Prior Convictions.

State v. Burchett, 2025-Ohio-****, (4^th. Dist.). Felony OVI conviction was affirmed. (2-1 decision). An officer responded to a call of a pick-up truck idling in the middle of a road with the driver unconscious and his foot on the brake. The defendant was outside of the truck when the officer arrived, but was identified as the driver. During the course of the defendant’s arrest for OVI, the defendant responded to the officer’s inquiry of prior OVI convictions, indicating he had three. The defendant’s statement was recorded on the officer’s body camera. The defendant’s statement was consistent with the number of OVI convictions in his L.E.A.D.S. record.

At trial the prosecution introduced certified copies of three judgments of convictions for OVI. The officer read the judgments and testified about his review of the leads report, but did not testify about any details concerning the driver's identity, such as date of birth and social security number, to connect the driver in the LEADS report to the defendant identified in the judgments of conviction. The LEADS report was not admitted into evidence. The defendant was found guilty of the felony OVI offense by the jury.

To prove a prior conviction by certified judgment entry ,R.C. 2945.75(B)(1) requires evidence sufficient to identify the defendant as the person named in the judgment entry. The defendant raised the lack of sufficient evidence on appeal because the officer did not testify that the defendant was the person named in the judgment entry The court noted the officer did not present any evidence concerning the defendant’s date of birth, social security number, or any other identifying information.

The court held the judgment entries were not sufficient to establish prior convictions due to lack of identifying information. The court noted, however, that a certified judgment entry is only one method to establish a prior conviction at trial. In the present case the court found the defendant’s statement at the time of the arrest that he had three prior OVI convictions was sufficient to sustain the conviction.

The dissenting opinion noted that although a defendant’s admission of prior convictions, other cases that have upheld this method found sufficient details to connect the defendant to the prior conviction. See, Parma v. Benedict, 2015-Ohio-3340 (8th Dist.) and State v. Gwen, 2011-Ohio-1512 (9th Dist.).The dissent stated that without any additional information, including the dates of the prior OVI conviction, the defendant’s statement by itself was not sufficient to support the felony OVI conviction.

2. Field Sobriety Tests.

State v. Wheeler, 2025-Ohio-5165 (2d. Dist). OVI conviction was affirmed. The defendant struck a tree with his truck and left the scene. The homeowner called the police who followed a trail of fluid from the tree to the defendant’s truck, located partially on the road and on the grass. The truck had fresh damage and wood chips embedded in it. Although the officer did not smell any alcohol from the defendant, the officer noticed bloodshot and watery eyes. The officer also noticed the defendant’s speech and movements were slow. After field sobriety tests were performed, the defendant was arrested and subsequently indicted due to prior OVI convictions. After a motion to suppress was overruled, the defendant entered a no contest plea.

The defendant asserted he was unlawfully detained on the hit/skip charge to conduct field sobriety tests. The court found, based on the defendant’s behavior and appearance, the erratic driving off the road, the defendant’s statement that he thought he hit a curb, not a tree, the time of the incident a few minutes before midnight, as well as the officer’s training and experience, there was sufficient evidence of a reasonable suspicion, supported by specific and articulable facts, to detain the defendant to conduct field sobriety tests.

3. Reliability of caller to dispatcher.

State v. Averesch, 2025-Ohio-5106 (3d. Dist.). A conviction for an unclassified misdemeanor OVI offense was affirmed. The defendant went into a store around 2:00 p.m. and purchased a six pack of beer. A few hours later the defendant returned to the store and purchased another six pack. The clerk noticed the defendant looked and acted different on his second trip. The clerk thought the defendant was intoxicated and as she watched him drive very slowly away and into the middle of the road, she called the police. The clerk gave the description of the car, a bright red Dodge Challenger, the street, and direction where he was driving.

An officer nearby responded to the dispatch call and saw the defendant. The officer pulled the defendant over and could smell a strong odor of alcohol when he spoke to the defendant. The defendant was ultimately charged with OVI, an unclassified misdemeanor due to two prior OVI convictions in the past ten years and refusal with a prior OVI conviction. (Subsequently dismissed as part of the plea agreement. ) After a hearing in which the defendant’s motion to suppress was overruled, the defendant entered a no contest plea to the OVI offense. Due to the statutory penalties, the Dodge Challenger was ordered forfeited.

Sufficiency of information to the dispatcher.

The defendant argued that although the clerk testified at the suppression hearing she saw the defendant drive in the middle of the road it was unclear if she provided that information to the dispatcher. The actual dispatch recording was not played and the issue was based on the clerk’s testimony at the suppression hearing, not what she actually told the dispatcher. When there are conflicting interpretations of a witness’ testimony, appellate courts are to interpret evidence that is susceptible to more than one interpretation consistently with the trial court's determination in the process of examining whether the findings are supported by some competent, credible evidence. State v. Wilson, 2018-Ohio-902, ¶ 28 (11th Dist.). (Par. 16, other citations omitted.). Giving deference to the trial court who had the opportunity to view the witness and observe the witness’ demeanor, gestures, and voice inflections, the trial court could find the clerk informed dispatch that she saw the defendant drive in the middle of the roadway. (Par. 17).

Reliability of caller as grounds for the traffic stop.

When an officer making an investigative stop relies solely upon a dispatch, the state must demonstrate at a suppression hearing that the facts precipitating the dispatch justified a reasonable suspicion of criminal activity. Maumee v. Weisner, 87 Ohio St.3d 295 (1999). In the present case the court found the clerk/caller was reliable based on:

1. The caller was identified, which carried an indicia of reliability, as opposed to an anonymous caller,

2. The information conveyed to the dispatcher was based personal interactions with the defendant and eyewitness observations of his condition and conduct. 

3. The conduct occurred contemporaneously to her conversation with the dispatcher. 

4. The caller supplied accurate information about the type of vehicle the defendant was driving and the location in which he was traveling.

5. That he had purchased beer and appeared drunk, and

6. The defendant’s erratic driving. 

The court found the detailed account by an identified informant was sufficiently reliable. The officer testified he was close to the area reported by dispatch and saw the car which had a

very distinctive color and was the only red Dodge Challenger on the identified street.

Forfeiture of vehicle as a constitutionally excessive fine.

R.C. 4511.19(G)(1)(c)(v) requires forfeiture of the vehicle for a third OVI conviction in ten years when the vehicle is owned by the defendant. The forfeiture provision was enacted “to deter people from driving drunk and to punish those who continue to do so to better protect Ohioans and their property from the damage that may follow." State v. O'Malley, 2022-Ohio-3207. The Court in O’Malley held the forfeiture was a fine "used to punish an individual for committing a criminal offense." 

The defendant asserted, based on the value of the car, a forfeiture was an excessive fine prohibited by the Eighth Amendment. The issue is whether the forfeiture is “grossly disproportional to the gravity of a defendant's offense.” O'Malley at ¶ 39, quoting U.S. v. Bajakajian, 524 U.S. 321, 334 (1998).

Determining the gravity of the offense includes the risk of harm by a repeat impaired driver to the safety of the other drivers on the roadway. The court noted the defendant chose to drive while intoxicated after he had received two prior convictions within the last ten years for the exact same conduct. The court also found the value of the car, purchased in 2023 for $37,933, was similar in value to the car forfeited in the O’Malley case. Applying the factors considered by the Court in O’Malley, the court found the forfeiture was not disproportional to the offense and upheld the forfeiture as an OVI penalty.

Procedural Issues.

1. Excessive continuances

State v. Smith, 2025-Ohio-5217 (5^th. Dist.). OVI and traffic control device violation convictions were affirmed. After being cited for OVI and other charges, the defendant appeared in court with retained counsel. A plea arrangement was later worked out but the defendant failed to appear for the hearing. The defendant was arrested a year later. Due to withdrawal of retained counsel, the court appointed new counsel for the defendant. Ultimately, the defendant discharged the appointed counsel. The defendant chose to represent himself, even though the trial court explained the perils of self-representation in a criminal case.

The trial court set the case for trial with a month notice to the defendant. Four days prior to the jury trial the defendant requested additional time to review discovery and to issue subpoenas. Due to three prior continuances, the motion was overruled. The jury returned a guilty verdict on the OVI charges and the court found the defendant guilty on the traffic charge.

Denial of successive continuances.

A motion for continuance is within the trial court's sound discretion. State v. Unger, 67 Ohio St.2d 65 (1981). When exercising that discretion, the trial court must balance the defendant's interest in adequate preparation against the court's interest in controlling its docket and the public's interest in prompt justice. State v. Unger at 67. Factors to consider include:

1. The length of delay requested;

2. Whether other continuances were requested and received;

3. Any inconvenience to litigants, witnesses, counsel, and the court;

4. Whether the requested delay was for legitimate reasons or was dilatory;

5. Whether the defendant contributed to the circumstances necessitating the request; and

6. Other relevant factors depending on the unique facts of each case. 

State v. Unger at 67-68.

When a continuance is sought to interview witnesses, the movant must show:

1. the identity of the witnesses,

2. the materiality of their testimony, or

3. the reasonable likelihood that they could be found. 

State v. Sowders, 4 Ohio St.3d 143 (1983). The court should also consider whether the defendant contributed to the circumstances requiring a continuance. State v. Prom, 2005-Ohio-2272 (12th Dist.).

In the present case the court found the defendant did not identify the discovery materials that he had not yet reviewed, how much additional time he needed, or how any additional time would affect his preparation. (Par. 12). In addition, further delay would have inconvenienced the court and the State's witnesses and would have undermined the efficient administration of justice. (Par. 13). Due to the age of the case and the number of continuances previously granted, the court found the denial of an additional continuance was not an abuse of discretion.

Police video authentication.

The defendant asserted the police videos were improperly altered, but offered no facts to support this contention. At the trial the officer authenticated the recordings by testifying that he recognized them and that they were true and accurate recordings of the traffic stop. (Par. 19). The court found the officer’s testimony satisfied any foundational requirements. State v. Freeze, 2012-Ohio-5840 (12th Dist.).

2. Post-conviction relief not applicable.

Parma v. Perotti, 2025-Ohio-5224 (8^th. Dist.). The trial court’s order denying a motion for post-conviction relief of misdemeanor conviction was dismissed by the appellate court for lack of trial court jurisdiction. This case arises out of the defendant’s OVI conviction. The conviction was affirmed on appeal. Parma v. Perotti, 2023-Ohio-3472 (8th Dist.).² The defendant filed a petition in the municipal court for post-conviction relief, asserting ineffective assistance of counsel based on incorrect legal advice. The trial court overruled the motion on its merits.

Municipal courts do not have jurisdiction to hear post-conviction relief petitions under

R. C. 2953.21. State v. Cowan, 2004-Ohio-1583.  Municipal courts are creatures of statute and have limited jurisdiction. R.C. 1901.18 and 1901.20 provide for their creation, with the former statute relating to civil matters and the latter relating to criminal and traffic matters. Neither R.C. 1901.18 nor R.C. 1901.20 provides for jurisdiction over post-conviction relief petitions in municipal court. Had the General Assembly envisioned such jurisdiction, it could have explicitly conferred it in R.C. Chapter 1901. State v. Cowan, supra at par. 11. See also, State v. McCombs, 2015-Ohio-2556 (2d. Dist.).

The court in Perotti noted that although R.C. 2953.21 had been amended numerous times since the decision in Cowan, none of the statutory amendments specifically provided municipal court jurisdiction for post-conviction relief proceedings. The court concluded that because the municipal court did not have subject matter jurisdiction, the trial court should have dismissed the petition for lack of subject matter jurisdiction instead of addressing the merits and overruling the motion.

Driver’s License Issues.

Boehm v. Ohio Dept. of Public Safety, 2025-Ohio-5092 (12^th. Dist.). Dismissal of driver’s license appeal for failure to pay filing fee with the notice of appeal was affirmed. This was an appeal from the Ohio Department of Public Safety suspending the appellant’s private detective license. R.C. 119.12(D) requires a notice of appeal to be filed in the common pleas court within fifteen days of service of the suspension notice. The appellant attempted to file the notice of appeal on the thirteenth day, but was rejected due to lack of the required filing fee. The appellant returned five days late and filed the notice with the filing fee. Upon motion of the ODPS, the appeal was dismissed due to untimely filing of the notice of appeal.

On appeal the court noted the common pleas local rule provided any document in any

civil action or proceeding shall not be accepted for filing by the clerk unless there is deposited as security for costs the amount required as set out in the court’s fee schedule. The notice of appeal was not filed with the common pleas clerk until all of the requirements, including the filing fee, were satisfied.

Boylen v. Ohio Dep't of Pub. Safety, 2025-Ohio-5024 (5^th. Dist.). An order of lifetime commercial driver’s license (CDL) was affirmed. Prior, separate felony convictions for OVI and grand theft of a motor vehicle required the registrar under R.C. 4506.16(D)(2) to disqualify the appellant from holding a CDL. R.C. 4506.15(A)(2) to (12) list the disqualifying criminal offenses, which include OVI and driving a motor vehicle in a commission of a felony. The court found a conviction under R.C. 4506.16 was not required for disqualification, only a conviction for the criminal offenses listed in R.C. 4506.15. Although R.C. 4506.15 is a penal statute classified as a first degree misdemeanor, R.C. 4506.16 addresses disqualification of a CDL based on violations listed in R.C. 4506.15, but does not provide a separate penalty.

The decision in Boylen is consistent with the decision in Bowling v. Norman, 2024-Ohio-2658 (6^th. Dist.).³ Both appellate courts found R.C. 4506.16 is merely the statutory mechanism for disqualifying a CDL holder for the criminal convictions.⁴

State v. Syph, 2025-Ohio-5075 (6^th. Dist.). Convictions for driving without a valid license and drug trafficking were affirmed. A detective working with the Highway Patrol stopped the defendant for failing to make a full stop at a stop sign. The defendant refused to provide a physical driver’s license to the officers, but gave them his Georgia driver’s license number. The number came back as suspended. During the traffic stop a drug dog was called and made a positive alert for drugs in the car. A bag or cocaine and a smaller bag of crack cocaine were found in the car. After a bench trial, the defendant was found guilty of the drug charges and driving without a license.⁵

License violation.

R.C. 4510.12(A)(1) prohibits driving on a public road or highway or any public or private property used by the public for purposes of vehicular travel are parking without a valid driver’s license. At trial the detective testified he ran the driver’s license number through the data system at the time of the stop. The defendant only had a Georgia driver’s license, which was under suspension. The court found the officer’s testimony was sufficient to support the conviction for driving without a license. (Par. 16).

Drug trafficking charges.

In a bench trial, the court assumes the fact-finding function of the jury. State v. Bleau, 2025-Ohio-1951 (6th Dist.). Due deference must be accorded the findings of the trial court because the trial judge is best able to view the witnesses and observe their demeanor, gestures and voice inflections, and use these observations in weighing the credibility of the proffered testimony. State v. Thompkins, 1997- Ohio-52.

The defendant argued the drugs were for personal use, not for sale. The court found, however, the location of the drugs in close proximity to the defendant along with a scale and $180 cash, being stopped in an area prone to drug activity during a multi-agency, law enforcement crime sweep of the area was sufficient evidence to support a conviction that defendant was unlawfully engaged in transporting and delivering cocaine for sale or resale.

Sentencing Issues.

1. Agreement by prosecutor as part of plea.

State v. Madison, 2025-Ohio-5034 (7^th. Dist.). Convictions and sentencing for aggravated vehicular homicide, three counts of aggravated vehicular assault, endangering children, and OVI, with specifications based on her driving under suspension at the time of the collision. The defendant was driving under the influence and with a suspended license with her four children in the car when she sped up to pass a car that was making a left hand turn. The other car spun off the road killing one and severely injuring the other three occupants of that car. The defendant was going 56 mph in a 25 mph zone with a BAC of .255.

The defendant plead guilty to the charges with remaining charges dismissed. The written plea agreement set out the possible penalties for each offense. The portion of the agreement was blank for a possible sentence with a handwritten notation of a prison term. The defendant read over and signed the form at the time of the plea. The defendant acknowledged that any sentence was within the court’s discretion and any agreement between counsel was only a recommendation.

Although the prosecutor agreed not to request any specific prison time at the time of the plea, at the sentencing the prosecutor filed a sentencing memorandum seeking the sentences to be consecutively imposed. The defendant argued that by the prosecutor’s request for consecutive sentences, the three year minimum sentence, as set out for the first degree felony, would not apply. The defendant did not request a continuance to speak with her attorney about this development and requested to proceed to sentencing. The court imposed consecutive sentences resulting with a prison term of eight to twelve years.

On appeal the court rejected the defendant’s claim of ineffective assistance of counsel. Although the defendant had a different interpretation of the penalty recommendation clause, the defendant was given the opportunity to withdraw her guilty pleas, but declined to do so. (Par. 37.). Consequently, the defendant waived any breach of the plea agreement. The court also noted that the defendant was informed and acknowledged at the time of the plea that any penalty recommendation would not be binding on the court.

2. License suspension as part of penalty.

State v. White, 2025-Ohio-5346 (8^th. Dist.). (2-1 decision). Convictions for aggravated vehicular homicide and assault were reversed for resentencing. The defendant was charged with aggravated vehicular homicide, vehicular assault and OVI. The OVI charge was dismissed and the defendant entered a no contest plea to the remaining charges.⁶ The court imposed consecutive sentences along with consecutive sentence on an unrelated domestic violence charge.⁷

At the plea hearing the trial court informed the defendant of the mandatory driver’s license suspension for the vehicular assault offense, but did not advise the defendant of the driver’s license suspension on the aggravated vehicular homicide offense. The defendant asserted on appeal he did not understand their full effect of his plea due to the trial court’s not informing him of the mandatory minimum license suspension.

Criminal Rule 11(C)(2)(a) requires the trial court to inform the defendant in a felony case of the maximum penalty involved in the offense.⁸ When the court does not comply with the Criminal Rule 11 advisements, the defendant must show either an omission of a constitutional right or a complete failure to comply with Criminal Rule 11(C). In the absence of these exceptions, the defendant must show actual prejudice for any error in the plea proceeding. State v. Sarkozy, 2008- Ohio-509. (Par. 22).

The court recognized a driver's license suspension is part of "the maximum penalty involved" in entering a guilty plea under Crim.R. 11(C)(2)(a) but falls into the nonconstitutional aspects of a plea colloquy. State v. Johnson, 2025-Ohio-149 (1st Dist.). (Par. 23). The issue, therefore, was whether the missing license suspension advisement was a complete failure to comply with Criminal rule 11.

A complete failure under Crim.R. 11(C)(2)(a) occurs when the trial court entirely omits an advisement to a defendant about a distinct component of the maximum penalty.  (Par. 24, citations omitted.). In the present case the defendant was informed of the mandatory driver’s license suspension, but only as it applied to one of the two charges he was pleading to. Although incomplete, the court held the defendant was notified that there was a mandatory minimum driver’s license suspension as a result of his plea. Therefore, the omission regarding the aggravated vehicular homicide charge was not a complete failure to comply with Crim. R. 11. (Par. 25). The court noted the defendant did not object at sentencing or file a motion to withdraw his pleas. Nor did the defendant show any prejudice in light of the license suspension imposed on the vehicular assault conviction, even though a longer suspension was applicable to the aggravated vehicular homicide conviction.

The dissenting opinion asserted that under Crim. R. 11(C), the trial court was required to inform the defendant of the maximum sentences faced for each of the individual charged crimes. (Emphasis added by appellate court, Par. 46, citations omitted.). The defendant was not properly advised of the full penalty with regard to the aggravated-vehicular-homicide count. Because the trial court completely failed to inform the defendant of the maximum penalty as required by Crim.R. 11(C)(2)(a), the defendant was not required to demonstrate prejudice.

Probation Issues.

1. Probation revocation.

State v. Sullivan, 2025-Ohio-4987 (12^th. Dist.). An order revoking community control supervision and imposing incarceration term for failing to complete treatment program and continued drug use was affirmed. The defendant was placed on two years community control supervision for a felony theft conviction. The terms of supervision required the defendant to refrain from drug and alcohol use, submit to random drug screens, and report to and comply with the directives of the probation department.

Two months after the sentencing, the defendant was charged with probation violation for failing to report to the probation officer. The defendant was found to be in violation with probation continued.

One year later the defendant was charged with probation violation for a new conviction and drug use. Again, after being found to be in violation the court continued probation with the condition the defendant enter a treatment program.

Six months later a third probation violation charge was filed after the defendant was discharged from the treatment program for engaging in fighting and other disruptions and program rule violations. After the third violation, the trial court revoked community control supervision and imposed the prison term.

 On appeal the court noted "[C]ommunity control revocation proceedings are not the same as a criminal trial, and a revocation of community control punishes the failure to comply with the terms and conditions of community control, not the specific conduct that led to the revocation." State v. Davis, 2016-Ohio-879 (12th Dist.). When a defendant violates CCS conditions, the court may

1) lengthen the term of CCs,

2) impose a more restrictive community control sanction; or

3) impose a prison term within the available range based on term specified in the notice provided to the offender at the original sentencing hearing. 

R.C. 2929.15(B).⁹

The defendant asserted that the decision to impose the prison term should be limited to the defendant’s underlying conduct in the most recent violation. The court held, however, the

trial court is not limited to consideration of the specific violation at issue but instead should "take into consideration a multitude of factors when making the determination whether to revoke community control and thereafter, how to sentence." State v. Mehl, 2022-Ohio-1154 (4^th. Dist.).   This necessarily includes consideration of the defendant’s 's criminal history and his likelihood of recidivism in order to impose a sentence consistent with the purposes and principles of sentencing. (Par. 18). The defendant’s repeated violation demonstrated he was unable or unwilling to comply with the terms and conditions of his community control. (Par. 20).

2. Intervention in Lieu of Conviction and Probation.

State v. Clark, 2025-Ohio-5173 (3d. Dist.). Termination of intervention in lieu if conviction (ILC), finding the defendant guilty of the underlying drug charge was affirmed. The defendant entered a guilty plea to a fourth degree felony drug charge with the proceeding stayed for her to participate in ILC with three years supervision. The terms and conditions of ILC included the defendant paying all court costs and assigned counsel fees. Two and a half years into the program the defendant absconded, staying the ILC time until she was arrested. During this time the trial court extended the ILC term for two years, from June 2023 to June 2025, due to lack of compliance with payment of court costs and attorney fees.

The defendant appeared in court in March, 2025 on an ILC revocation hearing. The court found the defendant had not complied with the ILC program, terminated the program, found the defendant guilty of the underlying drug offense, and sentenced her to community control supervision.

The defendant argued the June 2023 extension by the court was done without a hearing or her present in court was in violation of Criminal Rule 43(A) . The defendant asserted the extension was not valid and should have expired prior to the revocation hearing. On appeal, the court did not directly address the issue, noting that the defendant did not object to the extension when she was in court on the ILC violation hearing, and therefore, the court reviewed the issue on a plain error standard. The court noted the defendant was in violation of the ILC conditions at the time of the extension as well as later at the revocation hearing. Based on this standard, the court found the lack of the defendant’s presence when the court extended the ILC term did not affect the defendant’s substantial rights.

Although similar conditions and restrictions, the court noted differences between ILC and probation/community control as the procedures for ILC are governed by R.C. 2951.041.

• Community control is a sanction as party of a criminal penalty under R.C. Chapter 2929.

• ILC is an opportunity for first time offenders to receive help with their dependency without the ramification of a felony conviction.

3. Probation conditions; No Bars, No Alcohol.

State v. Andrews, 2025-Ohio-5178 (11^th. Dist). (2-1 decision). Conviction for violating protection order and probation condition of no alcohol was affirmed. The defendant asserted on appeal that the probation conditions not to purchase, possess, or consume any alcoholic beverage or drug of abuse or any pseudoephedrine product, or go to any bar or liquor establishment was not reasonably related to the offense. There was not issue of alcohol or drugs involved with the offense.

On appeal the court noted the defendant did not object to the probation conditions at the time of sentencing. Similar to the holding in Conneaut v. Pushic, 2025-Ohio-1783 (11th Dist.) and State v. Bright, 2025-Ohio-725 (5th Dist.), the court held in the absence of a timely objection, appellate review was by plain error and not abuse of discretion by the trial court. Applying the plain error standard, the court found the probation conditions did not undercut the defendant’s substantial rights or impose a manifest injustice on the defendant. Citing Bright, the court also noted, the review of the no-alcohol and no-entry-into-bars supervision terms must be conducted "with the understanding that the court will act reasonably at a revocation hearing, aware of the practicalities and fundamental goals of probation."

The dissenting opinion noted a probation condition must have some relationship to the crime of which the defendant was convicted. State v. Jones, 41 Ohio St.3d 51 (1990). In this case there was no evidence that a nexus exists between the defendant's conduct and the no-alcohol and no-entry-into bars restrictions. Regardless of the standard of review on appeal, an improper condition should not be upheld.

State v. Thornsley, 2025-Ohio-5128 (5^th. Dist.). Conviction for breaking and entering and grand theft, along with probation conditions that included “using no drugs, alcohol, substance of abuse, no bars or taverns" were affirmed. This case arises out of a break in at a pet transportation company. The defendant and his wife were both charged with the offenses, along with a third party. The spousal defendants were represented by the same defense attorney with a joint notice of alibi by both defendants. Prior to trial the trial court advised both defendants of a potential conflict of interest if one defendant provided incriminating evidence against the other defendant. The court also offered both a continuance and appointment of counsel for either defendant. Both declined and proceeded to trial with the same attorney. The jury returned guilty verdicts on all charges against both defendants.

Multiple defendants with same counsel.

In order to establish a Sixth Amendment violation due to a conflict of interest, a defendant who failed to object at trial must demonstrate an actual conflict of interest adversely affected his lawyer's performance. Cuyler v. Sullivan, 446 U.S. 335, 348 (1980). A possible conflict of interest exists where the "interests of the defendants may diverge at some point so as to place the attorney under inconsistent duties." 446 U.S. at 356. (Par. 17). This may occur during the course of the representation the attorney is placed in a position to present evidence on behalf of one defendant that is prejudicial to the other defendant. State v. Gillard, 1997- Ohio 183.

In the present case the court noted the defendants raised a mutual defense and did not attempt to cast blame on each other. (Par. 22). Although the defendant contended the evidence was stronger against his co-defendant spouse as she had left a flashlight at the scene from which DNA evidence was obtained, that was an issue concerning separate trials, not joint representation. (Par. 21). The court found no conflict of interest by joint representation in this case.

No alcohol, no bars condition of probation.

The defendant asserted the drug and alcohol prohibition did not bear a rational nexus to the crimes of which he was convicted. The appellate court agreed, but noted the defendant did not object to these conditions at the time of sentencing. Due to the lack of objection at the time of sentencing, the appellate standard of review was plain error instead of abuse of discretion. The court found the probation conditions imposed did not create exceptional circumstances to prevent a manifest miscarriage of justice under the plain error standard. (Par. 85, citations omitted.).

Author’s note. A common example of conflicting interest occurs when one defendant divulges to the attorney confidential, self-incriminating evidence that would exonerate the co-defendant. The information could not be used due to attorney/client privilege. In that situation the attorney has an obligation to withdraw from representing both defendants. Before taking a plea or proceeding to trial, the trial court should advise both defendants in open court on the record of the risk of being represented by the same attorney.

Competency issues and court hearings

State v. Harris, 2025-Ohio-5074 (6^th. Dist.). Convictions for failure to comply with lawful police order and theft were affirmed. After an attempt to stop the defendant for theft in Bowling Green, the defendant led the police on a thirty five mile chase which was terminated when the defendant entered Michigan. The defendant was later arraigned by video from jail in Michigan. During the video the defendant stated a competency evaluation was conducted for the pending Michigan charges and he was determined to be incompetent. Based on the issue raised by the defendant, the Ohio trial court ordered a separate competency evaluation.

Upon the defendant’s return to Ohio, the trial court raised the competency issue. The defendant informed the court he had been found competent in Michigan. The defendant did not renew a motion for competency evaluation or waive the previously raised competency issue. No competency evaluation occurred and after negotiations between prosecutor and defense counsel, the defendant entered no contest pleas to the failure to comply and theft charges. The trial court personally addressed the defendant and determined the pleas were knowingly and voluntarily entered by the defendant. At the sentencing defense counsel told the court the defendant was getting treatment for mental and physically health issues. The court imposed an eighteen month sentence due to the severity of the high speed chase, concurrent with the misdemeanor theft charge.

The defendant raised the lack of a competency hearing on appeal. R.C. 2945.37(B) provides "If the issue is raised before the trial has commenced, the court shall hold a hearing on the issue." (emphasis added). State v. Bock, 28 Ohio St.3d 108 (1986). (When timely raised, a competency hearing is mandatory.). To protect a defendant’s rights, the same competence to understand the proceedings and assist defense counsel at trial applies to a plea proceeding. (Par. 17). Although the court found the trial court was required to conduct a hearing once the competency issue was raised, the failure to do so was harmless error in this case and did not require reversal. (Par. 22).

The court found the defendant demonstrated a full understanding of the proceedings and his ability to assist in his defense. (Par. 25). Although the defendant had some mental health issues, incompetency is not the same as mental or emotional instability. State v. Mills, 2023-Ohio-4716, State v. Bock, supra. (Par. 23). The court found nothing in the record to show that any mental condition (or any consequences of any prior drug use or abuse) precluded him from understanding the nature and objective of the proceedings against him, assisting in his defense, or in entering knowing, intelligent, and voluntary guilty pleas. (Par. 25).

State v. Pubill, 2025-Ohio-5231 (8^th. Dist.). Vandalism conviction was affirmed. The defendant damaged a window at the Federal Reserve Bank by hitting it with a padlock inside the sock. The defendant did not appear in court resulting in an arrest warrant. After being arrested five months later, the defendant refused to cooperate with the court proceedings, his own attorney, and the jail regulations. The trial court referred the defendant for an evaluation at the North Coast Behavioral Health. The defendant’s prior referrals to North Coast in other cases noted a history of refusal, non-compliance, and courtroom misbehavior, which North Coast found to be volitional and not related to any issue of incompetence or mental health deficiencies.

The court conducted a competency hearing but did not refer the defendant for an additional competency evaluation. The trial court noted prior mental evaluations found the defendant competent and based on the defendant’s conduct, an additional referral would not produce a different result. The evaluations indicated that during prior court referrals to North Coast the defendant was unmedicated and displayed no objective signs of psychosis and no evidence of hallucinations, delusions, or other mental conditions were diagnosed. The court noted despite disruptive behavior, the defendant had participated in legal proceedings numerous times in the past, including multiple plea bargaining proceedings.

During the trial the defendant continued disruptive behavior despite the court’s admonitions. The defendant was ultimately removed from the courtroom with video attendance.

On appeal the defendant asserted the trial court was required to refer him for another competency report. As a general rule, a defendant is rebuttably presumed to be competent to stand trial. State v. Lawson, 2021-Ohio-3566. When the issue is raised, the defendant has the burden of proof by a preponderance of the evidence that he is not competent to stand trial. R.C. 2945.37(G). Although a hearing is mandatory when a competency issue is raised, a "brief colloquy," however, may be sufficient to satisfy the hearing requirement. State v. Lozada, 2020-Ohio-5008 (8th Dist.). Moreover, an evaluation is not required without sufficient indicia of incompetence. (Par. 39, citations omitted.). In this case the court noted no formal request for an additional competency hearing and no objection to referral to the prior competency evaluations.

The trial court noted that defendant's behavior was "willful," "voluntary," and "obstructionist," and gave the defendant an opportunity to respond. The trial court, observing defendant's demeanor and behavior, noted for the record that defendant “raised [his] middle finger even higher in response to that." This exchange further supports the trial court's finding that defendant understood precisely what was happening in the courtroom and voluntarily chose to be obstructive rather than assisting his attorney with his own defense. (Par. 37).

In the present case the trial court previously ordered two competency evaluations, and the defendant refused to participate in both. The court found the defendant to be willfully obstructionist, intractably stubborn, but both fully able to understand the nature of the trial court proceedings and assist his attorney in defending him. (Par. 39). The record showed there was reliable and credible evidence supporting that the defendant was competent and the issue was raised only to further delay the trial.