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Traffic Signals — January 2026

TRAFFIC SIGNALS NEWSLETTER

Dear Colleagues,February 5, 2026

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 fact situations for determining reasonable suspicion, probable cause, or sentencing criteria which may be of assistance when reviewing motions to suppress.

As always, I am grateful to Paul Pfeifer, Trina Bennington, and the Ohio Judicial Conference staff for 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

OVI and sufficiency of evidence.

State v. Miller, 2026-Ohio-297 (5^th. Dist.). OVI conviction was affirmed. The officer responded to a call of a person passed out in a car. When the officer arrived, the man had left, but a witness told the officer the direction the defendant drove. Following the same route, the officer came upon a utility pole broken in half and dangling from the wires. The officer was then dispatched to a crash scene a short distance away. At this scene the officer found the defendant unconscious behind the wheel of a running car. The airbag had deployed and there was damage to the front and both sides of the car. After multiple attempts to rouse the defendant the officer was able to shut off the car engine.

The was lethargic and slurring his words. The defendant said his condition was due to low blood sugar. While waiting for the paramedics to arrive the officer conducted an inventory search and discovered a syringe loaded with heroin and an envelope containing a rocklike substance later determined to be a fentanyl-related compound. (Par. 8). Field sobriety tests were attempted, but terminated because the defendant kept falling asleep and unable to stand. The defendant admitted to taking a Xanex that he got from an unknown person.

The jury returned a guilty verdict on the OVI charge. On appeal the defendant asserted the conviction was not supported by the evidence because there were no blood, breath or urine tests and that his behavior could have been explained by both his blood sugar and the results of the collision. Rejecting this argument, the court noted:

1) R.C. 4511.19(A)(1)(a) does not require testing of blood, breath, or urine to support an OVI conviction. (Par. 30).

2) The officer was dispatched to where the defendant had been passed out behind the wheel of his car before the defendant struck the utility pole. (Par. 31).

3). The defendant was examined by paramedics at the scene who determined he had no medical conditions which required attention or transport to the hospital. Additionally, drugs were found in Miller's car and he had track marks - needle puncture wounds - on his arms indicative of intravenous drug use. The heroin was found loaded into a syringe and ready to inject. (Par. 32).

4) The defendant stated he had taken what he thought was Xanex that got from "some guy." He later testified "I don't know what was in it. I was pretty messed up." (Par. 33).

The court found the OVI conviction was sufficiently supported by evidence and affirmed the conviction.

OVI issues with other offenses.

State v. Kepler, 2026-Ohio-223 (12^th. Dist.). Conviction for improper handling of a firearm in a motor vehicle was affirmed. The firearms were discovered after the defendant was arrested for OVI. The defendant was initially stopped for driving a vehicle without a rear license plate light. At the stop the defendant got out of the truck and refused to get back in when ordered by the officer. The officer observed slurred speech and the smell of alcohol from the defendant. Further contact with the defendant showed red, bloodshot, and glossy eyes, dilated pupils, difficulty to both stand without swaying and follow directions. Based on these observations and the field sobriety test results, the defendant was arrested for OVI.

The defendant was indicted only on the weapons charge. A motion to suppress was overruled and the jury returned a guilty verdict on the weapons charge. On appeal the defendant raised issues about the traffic stop and duration of detention.

Rear license plate light.

R.C. 4513.05 requires rear illumination by a taillight or separate white light to render the license plate legible from a distance of fifty feet to the rear. The defendant did not dispute the missing light, but argued the license plate could be read from a fifty foot distance. The appellate court held the rear illumination was a statutory requirement and therefore, the missing light was a traffic violation to support a valid stop. (Par. 17).

Detention at the stop.

Although a traffic stop is limited in duration to the task related to the traffic stop, the detention may be extended when additional facts are discovered that give rise to a reasonable, articulable suspicion of criminal activity beyond the original purpose of the stop. (Par. 16, citation omitted). The detention in this case related to the initial stop for no rear license plate light, the field sobriety tests, and the subsequent arrest of the defendant on the OVI charge.

Improper handling of a firearm.

R.C. 2923.16(D)(1) prohibits a person from having or transporting a loaded handgun in a motor vehicle if the person is under the influence of alcohol, a drug of abuse, or a combination of them. Although the standard for the offense is the same as an OVI under R.C. 4511.19, an OVI charge or conviction is not required for a conviction.

The defendant argued the lack of an OVI charge in the indictment was evidence that the defendant was not under the influence at the time of the stop. The appellate court rejected this argument, noting that the lack of an OVI charge by the grand jury was not determinative and the record did not reflect if the prosecutor presented that charge to the grand jury. (Par. 26). The officer’s observations of the defendant’s conduct, appearance, and field sobriety test results provided a reasonable and articulable suspicion that the defendant/driver was impaired.

Motion to suppress issues.

1. Order overruling motion to suppress without a hearing.

State v. Jackson, 2026-Ohio-177 (5^th. Dist.). Convictions for OVI and marked lanes were reversed. The defendant filed a motion for leave to file a motion to suppress after expiration of time limits. Crim. R. 12(D). The defendant asserted he had just received the urine test results and the dash cam video did not show a traffic violation that was the basis for the stop. The trial court overruled both the motion for leave and any issues related to a motion to suppress. Although a formal hearing was not conducted, the trial court viewed the video with both prosecutor and defense counsel, finding that the defendant’s tires crossed the street centerline.

The defendant entered a no contest plea and was sentenced. A month after the sentencing the trial court requested both parties to submit findings or fact on the motion to suppress.

Reviewing the trial court’s suppression order, the appellate court noted, “When a trial court elects to consider the merits of an untimely motion—rather than deny it on procedural grounds—the court necessarily exercises its discretion to excuse the untimeliness. State v. Bower, 2010-Ohio-4420 (5th Dist.).” (Par. 19). Consequently, the issue on appeal was the merits of the suppression issues, not the procedural issue of timeliness.

Suppression motion findings.

Criminal Rule 12 (F) requires factual findings if factual issues are involved when determining the motion to suppress. In the present case the appellate court found the defendant made a timely request for the court’s findings on the suppression issue. Although the court issued findings after final judgment and conviction, the appellate court found factual finding are required when the suppression motion is ruled on and post-conviction findings did not comply with the findings requirement of Criminal Rule 12.

Suppression hearing.

The defendant raised a factual issue on the validity of the stop and the officer’s video. By relying solely on the video without a hearing, the defendant was precluded from challenging the State’s evidence through cross examination or presentation of other evidence. (Par. 28). Due to the factual issues raised which directly related to the validity of the traffic stop, an evidentiary hearing was required. (Par. 32). State v. Codeluppi, 139 Ohio St.3d 165, 2014-Ohio-1574. Although both parties agreed for the trial court to review the police video, this was not a case in which the issues were submitted to the court on stipulations. Deciding the factual issues raised in a motion to suppress without a formal evidentiary hearing was reversible error.

2. Invalid traffic stop.

State v. Coleman, 2026-Ohio-**** (2d. Dist.) An OVI conviction was vacated on appeal due to lack of reasonable articulable basis to stop the defendant. The defendant was stopped when the officer observed her making a left turn on a red arrow traffic signal. When the officer approached the car, he noticed a strong odor of alcohol from the defendant and other physical signs of impairment. After the field sobriety tests, the defendant was arrested for OVI. A motion to suppress was overruled and the defendant entered a no contest plea to the OVI charge and found guilty.

On appeal, the defendant challenged the traffic stop. R.C. 4511.13(A)(2) permits a vehicle with a steady green arrow to enter the intersection and complete the turn when the traffic is clear. On the other hand, if the arrow signal is red, a vehicle is required to stop at the stop bar or other marking and not proceed into the intersection until the arrow signal changes. R.C. 4511.13(C)(2).

In the present case the officer saw the defendant in the intersection in front of the steady red arrow, but did not see the color of the arrow signal when the defendant entered the intersection. The court noted if the defendant had entered the intersection lawfully, she was legally permitted to turn once the traffic cleared, even if the arrow signal turned red while she was waiting. The appellate court found in the absence of a traffic violation, the officer lacked reasonable, articulable suspicion to initiate the traffic stop of the defendant’s vehicle.¹ The court found the motion to suppress should have been granted and reversed and vacated the conviction.

3. Raised by way of ineffective assistance of counsel.

State v. Siler, 2026-Ohio-130 (5^th. Dist.). Felony OVI convictions were affirmed. Late at night the defendant’s car was spotted by the property owner in a cornfield a distance from the road. Although the defendant told the officer who responded to the call that he was texting while driving, the driver had a strong odor of alcohol, glassy, bloodshot eyes, and was unable to keep from stumbling as he tried to remove mud from his shoes. The defendant made inconsistent statements regarding his direction of travel, destination, and an alleged friend who was coming to assist. The defendant refused to perform any field sobriety tests and was arrested. An open container of “Buzzball Cocktail” was found in the car. At the station the defendant refused to submit to a chemical test and a search warrant was obtained for a blood sample. Although the defendant resisted the phlebotomist when taken to the hospital. Eventually, a blood sample was drawn, showing a blood alcohol concentration of 0.135 grams per one hundred milliliters of whole blood at the time of the draw, plus or minus 0.009 grams.² 

The defendant was charged with two OVI counts, R.C. 4511.19(A)(1)(a) and (G)(1)(d) (OVI with three prior convictions) and R.C. 4511.19(A)(2)(a), (A)(2)(b), and (G)(1)(d) (OVI with prior refusal within ten years of prior OVI offense). Both were fourth degree felonies. The jury found the defendant guilty of both counts, which were merged for sentencing. On appeal the defendant raised ineffective assistance of counsel for failing to file a motion to suppress.

1. Ineffective assistance of counsel – General.

In order to prevail on a claim of ineffective assistance of counsel, the defendant must show:

1) counsel's performance fell below an objective standard of reasonable representation, and

2) counsel's deficient performance prejudiced the defense, resulting in an unreliable or fundamentally unfair outcome. Strickland v. Washington, 466 U.S. 668, 687-688 (1984). 

2. Ineffective assistance of counsel – Lack of motion to suppress.

The absence of a motion to suppress is not proof by itself of ineffective assistance of counsel. (Par. 21, citations omitted.). The defendant must also show 1) the motion would have been granted and 2) there is a reasonable probability the outcome of the proceedings would have been different. (Par. 21, citations omitted.).

The defendant asserted the blood sample should have been suppressed because the phlebotomist could not recall whether she inverted the blood sample after collection, which he claims is required by Ohio Adm. Code 3701-53-06.³ The court noted, however, that Ohio Adm. Code 3701-53-06 sets out procedures for collection, sealing, labeling, and storage, but it does not mandate inversion of the sample as a condition of admissibility. (Par. 29). Moreover, in this case the defendant did not prove there was no inversion, only that the phlebotomist could not recall if she did the inversion. There was also no evidence that the blood sample was compromised. The appellate court held there was no reasonable probability that a motion to suppress the blood-alcohol evidence would have been granted.

Sentencing issues.

1. Consecutive sentences.

State v. Walker, 2026-Ohio-51(1^st. Dist.). Misdemeanor sentence imposed consecutively with felony prison term was reversed. The defendant was sentenced to 30 months in prison for attempted burglary in the common pleas court. Related to that offense the defendant was charged with assault in municipal court and after being found guilty, received an additional 180 days, to be served consecutively with the felony conviction.

The controlling statute, R.C. 2929.41(A), sets out the general rule that misdemeanor sentence should be imposed concurrently with a felony sentence. Although R.C. 2929.41(B)(1) appears to provide authority for consecutive misdemeanor and felony sentences, relying on State v. Polus, 2016-Ohio-655, the language of R.C. 2929.41(B)(1) is limited by R.C. 2929.41(B)(3), which only permits consecutive misdemeanor and felony sentences for specific offenses.⁴ The criminal offenses in the present case were not part of the specific offenses identified in that statute. Therefore, only concurrent, not consecutive sentences could be imposed in this case.

State v. Strohl, 2026-Ohio-234 (5^th. Dist.). Convictions for aggravated vehicular assault and OVI with consecutive sentences for the two felony convictions were affirmed. The defendant drove over the centerline and crashed head-on into an oncoming car. Both the driver and the passenger incurred serious physical injuries. The defendant’s BAC was .144. The defendant entered no contest pleas to two counts of aggravated vehicular assault and one OVI count. The court imposed eighteen month consecutive sentences on each vehicular assault charge for a total of 36 months in prison. The jail time for the OVI offense was imposed concurrently to the two felony offenses. The trial court made detailed finding for consecutive sentences, including the defendant’s conduct causing life-altering injuries as well as his decision to drive while impaired having long-term consequences for the two victims. (Par. 5).

Unlike a misdemeanor sentence, review of a felony sentence is governed by R.C. 2953.08. Although sentences are presumed to be imposed concurrently under R.C. 2929.41, there are statutory exceptions when supported by the facts in the record for consecutive sentences. (Par. 8). The trial court’s findings are required so the reviewing court can discern that the trial court engaged in the correct analysis and can determine that the record supports the findings for consecutive sentences. State v. Bonnell, 2014-Ohio-3177. (Par. 10, other citations omitted.). An appellate court cannot modify the trial court’s sentence unless the appellate court determines the record does not support the trial court’s findings. R.C. 2953.08(G)(2). (Par. 11).

In the present case the trial court stated at sentencing the defendant made a bad decision to get behind the wheel of a car after he had been drinking and this decision caused significant, lifetime, life-altering injuries. (Par. 16). The court findings include both victims had extensive physical and psychological harm, including PTSD, multiple surgeries, and continued medical and mental health treatment. (Par. 15). The court also noted the defendant’s prior criminal record. The appellate court found the record was sufficient to support consecutive sentences.

Author’s note: Consecutive sentences for misdemeanor offenses are governed by R.C. 2929.41, with the sentencing considerations contained in R.C. 2929.21 and R.C. 2929.22. Although specific findings are not statutorily required, the court should set out on the record a basis to show consecutive sentences were not disproportionate to the seriousness of the defendant’s conduct and the danger posed by the defendant to the public. State v. Collins, 2024-Ohio-2891 (4^th. Dist.).

2. Sentence outside statutory range.

State v. Liason, 2-26-Ohio-243 (7^th. Dist.). A conviction for failure to comply with an order of a police officer was affirmed as modified with increased sentence. The defendant entered a guilty plea to the charge, a third degree felony. The prosecutor recommended the minimum sentence be imposed, which for a third degree felony offense is nine months. Although the trial court acknowledged the minimum sentence of nine months, the court instead imposed a six month jail sentence. The prosecution appealed the judgment.

R.C. 2953.08(B)(2) permits a prosecutor to appeal a felony sentence that is contrary to law. R.C. 2945.67 also provides authority for a prosecutor to obtain leave to appeal any decision for either a felony or misdemeanor offense except the final verdict.

On appeal the court held a sentence that is outside the statutory range is contrary to law.  State v. Marcum, 2016-Ohio-1002, citing State v. Kalish, 2008-Ohio-4912. (Par. 14). Moreover, “a sentence imposed contrary to law constitutes a plain error and we may review it for plain error." State v. Whittenburg, 2022-Ohio-803 (8th Dist.). (Par. 30). Therefore, the lack of objection by the prosecutor in the trial court did not preclude raising the issue on appeal.

Citing State v. Fischer, 2010-Ohio-6238, “Judges are not imperial [and their] authority to sentence in criminal cases is limited by the people through the Ohio Constitution and by our legislators through the Revised Code. Judges have no inherent power to create sentences . . . Rather, judges are duty-bound to apply sentencing laws as they are written."  The only sentence the trial court may impose is the one set forth in the statute with no power to substitute a greater or lesser sentence than the one provided for by the statute. (Par. 36, emphasis by court of appeals).

By the authority of R.C. 2953.08(G)(2) for a felony case, the court of appeals amended the sentence to nine months, as the minimum statutory penalty instead of remanding the case to the trial court for re-sentencing.

3. Sentence within statutory range upheld.

State v. Summerville, 2026-Ohio-198 (5^th. Dist.). Felony OVI conviction was affirmed. The defendant was initially charged with leaving the scene of a collision (hit/skip) and OVI. The defendant did not dispute either consumption of alcohol or failure to pass field sobriety tests, entered a no contest plea to the OVI charge with the hit/skip charged dismissed. The felony OVI charge was based on three prior OVI convictions within the past ten years. A 24 month prison term and lifetime driver’s license suspension were imposed.

On appeal the defendant challenged the prison sentence. Affirming the sentence, the appellate court found the sentence was within the statutory range for the level of offense. (Par. 19). The court noted the defendant had a long history of driving convictions, a prior felony conviction, violation of bond conditions, unemployed for over twenty years, and was behind on child support. Reviewing the sentencing purposes in R.C. 2929.11 and recidivism factors in R.C. 2929.12, the record did not show the sentence was unsupported by the record in the case.

Alcohol restrictions and probation conditions.

State v. Bradley, 2026-Ohio-232 (5th. Dist.). Convictions for two counts of menacing by stalking, one count of dissemination of image of another person one count of burglary and one count of theft were affirmed but reversed on imposed probation conditions. The defendant was the ex-boyfriend of the victim. At numerous times he travelled from Pennsylvania and broke into her residence through an unlocked window, stealing gifts he had given her, and purposely left the door unlocked to let her know he had been in her house. He also texted sexually explicit photos of her to her new boyfriend and threatened to post the photos on the internet.

The convictions were based on no contest pleas. On appeal the defendant asserted some of the charges were allied offenses of similar import and should be merged for sentencing. The defendant also contested the probation conditions.

Allied offenses.

R.C. 2941.24(A) is a statutory protection against double jeopardy. This statute provides when “the same conduct by defendant can be construed to constitute two or more allied offenses of similar import, the indictment or information may contain counts for all such offenses, but the defendant may be convicted of only one.” The Court in State v. Ruff, 2015-Ohio-995, noted the first step is the defendant’s conduct as applied to each offense, which would not merge when any of the following apply.

1) the offenses are dissimilar in import or significance—in other words, each offense caused separate, identifiable harm,

2) the offenses were committed separately, or

3) the offenses were committed with separate animus or motivation.

Applying this analysis in the present case the court found none of the offenses qualified for merger. In State v. Ramunas, 2021-Ohio-3191 (5th Dist.), the court recognized burglary and theft were allied offenses because the burglary offenses are based on the intention to commit another criminal act, theft. R.C. 2911.12(A)(3). The court in Ramunas found both offenses were committed by a single course of conduct and with a single state of mind." (Par. 14). In the present case, however, the defendant broke into the victim’s home numerous times to harass and threaten her without committing a theft offense.⁵ The court concluded the burglary and theft offenses were not a continuing course of conduct and were committed with a separate animus or motivation for the victim experienced distinct harms - fear of someone entering the sanctity of her home and the economic loss of her property. (Par. 21).

Similarly, the court found the menacing by stalking and dissemination of an image of another were not allied offenses based on the facts of the case. The two menacing by stalking offenses were based on separate acts, including verbal threats and trespass into her home. All of the underlying conduct for the menacing by stalking offenses were in addition to forwarding pictures of the victim to her new boyfriend and therefore were separate acts.

Probation conditions.

In addition to other probation conditions, the trial court imposed:

10) The defendant shall not consume, have in his/her possession, residence or automobile any type of alcoholic beverage or drugs of abuse.

11) The defendant shall not enter into any establishment that serves alcohol without the approval of the supervising officer.

None of the defendant’s criminal acts involved either alcohol or drugs. Although the appellate court noted the trial court has discretion when imposing probation conditions, that discretion is limited to;

1) is reasonably related to rehabilitation,

2) some relationship to the convicted offense, and

3) conduct which is criminal or reasonably related to future criminality and serves the statutory ends of probation. 

State v. Jones, 49 Ohio St. 3d 51 (1990) & State v. Talty, 2004-Ohio-4888. The courts in both Jones and Talty recognized, however, that a condition "cannot be overly broad to unnecessarily impinge upon the probationer's liberty. (Par. 32). The court found that with no indication that any of the offenses were drug or alcohol related, prohibiting the defendant from entering “a restaurant, grocery store, convenience store,” without the probation officer’s permission were overly broad, unreasonable, and unnecessarily impinged on the defendant’s liberty. (Par. 37).⁶

In the concurring opinion, it was pointed out that although alcohol restrictions were upheld as a probation condition in other cases in which the offense was not alcohol related,⁷ the conditions in this case were far more sweeping. (Par. 48). The probation condition not only prohibited the defendant from consuming alcohol, but also entering into any place that serves alcohol, which would include dining or even picking up take out at a restaurant or pizza shop, as well as “sports venues, wedding-reception sites, or concert halls where alcohol might be served.” (Par. 48).

Although the concurring opinion acknowledged that the trial court was in the best position to impose probation conditions to address both the defendant and the convicted offense, overboard conditions may result in undue burdens and restrictions on the defendant. The concurring opinion urged caution when imposing no alcohol probation conditions when the offense is not alcohol related and there is no other information in the record, such as a substance abuse assessment, presentence report, or victim statement, that alcohol was a contributing factor. (Par. 52).

State v. Kovach, 2026-Ohio-171 (5^th. Dist.). Strangulation and assault convictions were affirmed. The issue in this case also involved a probation condition banning alcohol and illegal drug consumption and stay out of any bars or other businesses where alcohol sales are the primary source of revenue. Neither offense involved alcohol or drugs.

Due to the lack of objection to the probation conditions when imposed in the trial court, the standard of appellate review was plain error, not abuse of discretion. Under Criminal Rule 52, plain error is limited to a manifest miscarriage of justice." State v. Long, 53 Ohio St.2d 91 (1978), paragraph three of the syllabus. In the present case the court recognized the probation condition may be inconvenient at times for the defendant, but "a trial court can impose community-control sanctions that limit the offender's fundamental rights, provided that such limitations further the statutory goals of community control and are not overbroad." State v. Chapman, 2020-Ohio-6730. (Par. 35). The court also noted R.C. 2929.17(H) permits drug and alcohol use monitoring in felony cases.⁸ Reviewing the impact of the probation conditions, the court held the probation conditions, which were limited to bars and liquor stores, was not overly broad or impose a substantial burden on the defendant.

Community control/probation revocation.

United States v. Watson, No. 25-3928,2026 U.S. App. LEXIS 230 (6^th. Cir. 2026). An order revoking supervised release due to medical marijuana use was affirmed. The defendant had filed a motion to permit medical marijuana use and proof of a medical marijuana card. The trial court deferred ruling on the motion but stated it would probably be unlikely to revoke supervised release if the defendant complied with all of the other conditions. After two separate drug screens showing continued use of marijuana, a hearing was conducted and supervised release was revoked.

On appeal the court noted it was undisputed that the defendant had multiple positive urinalysis tests for marijuana despite being informed by his probation officer that he was not allowed to use marijuana. The court further noted that although a motion was pending to permit medical marijuana use, the motion had not been granted, and therefore, it remained a condition of supervised release. Regarding the trial court’s comment of an “unlikely violation,” the appellate court raised concerns that the trial court’s statement may have mislead the defendant. The appellate court held, however, that the court’s written judgment entry, not comments from the bench, were binding.

State v. Clutter, 2026-Ohio-139 (2d. Dist.). An order revoking community control supervision and imposing prison term was affirmed. The defendant entered a plea of no contest to possession of a fentanyl-related compound, a fifth degree felony in violation of R.C. 2925.11(A) and one count of OVI a first degree misdemeanor in violation of R.C. 4511.19 in exchange for the prosecutor’s recommendation of community control supervision. Per the agreement the court imposed two year community control supervision with conditions “precluding him from purchasing, receiving, possessing, ingesting, injecting, or consuming illegal controlled substances, alcohol, non-prescribed medication, medical marijuana, and various other substances.” (Par. 2).

During the supervision term a violation notice was filed that the defendant 1) left the state without permission, 2) did not inform the court of contact with law enforcement from a speeding ticket, and 3) tested positive for marijuana and alcohol. The defendant admitted all of the violations except consumption of alcohol. A hearing was conducted on the remaining violation and the defendant was found to be in violation for alcohol consumption based on the evidence at the hearing including admissions in his own text messages. The suspended 12 month term of incarceration was imposed.

On appeal the defendant did not dispute the violations, but asserted they were technical violations under R.C. 2929.15(B)(1)(c)(i) and therefore sentence was limited to 90 days.⁹ The court noted a non-technical violation includes the defendant’s “articulated or demonstrated refusal to participate in the community control sanction imposed on the offender or any of its conditions, and the refusal demonstrates to the court that the offender has abandoned the objects of the community control sanction or condition.” R.C. 2929.15(E)(2). The court noted the significance of leaving the state without permission made the defendant unavailable for any illicit drug use or counselling monitoring. (Par. 20). The court found the overall pattern of the defendant’s conduct, including six separate unauthorized absences from Ohio as well as his “smug and arrogant” text comments about probation conditions demonstrated a refusal to comply with community control supervision conditions. (Par. 19-21). The trial court’s conclusion that the violation was nontechnical was affirmed.

Statutory community control/probation conditions.

Although affirming the violation and prison sentence, the appellate court rejected the prosecutor’s alternate position that not leaving the state of Ohio without court permission and abiding by all laws were not supervision conditions but imposed as a matter of law in addition to any community control supervision conditions. Reviewing the language in R.C. 2929.15(A)(1), when a court imposes supervision conditions, the court "shall impose as a condition of the nonresidential sanctions that, during the period of the sanctions, the offender must abide by the law and must not leave the state without the permission of the court or the offender's probation officer." (Emphasis added by the court.) See also, R.C. 2929.17.¹⁰ Based on this language, the court found the requiring the defendant not leave the state without permission unambiguously constituted a condition of community control. (Par. 19).

Failure to comply with lawful police order.

State v. Kiser, 20256-Ohio-270 (5^th. Dist.). Conviction for failure to comply with an order or signal of a police officer was affirmed. After the officer ran the defendant’s license plate three times with no registration, the officer put on the overhead lights to pullover the defendant. The defendant responded by accelerating. The officer followed with a siren, but the defendant kept driving, reaching 70 mph. The defendant crossed the centerline numerous times and drove through a red light. The defendant finally drove into his sister’s driveway. The defendant explained the truck was his sister’s and he did not want to get it towed. At trial the jury found the defendant guilty of failure to comply with a lawful police order.

Supporting evidence.

On appeal the defendant asserted there was insufficient evidence to support the conviction. R.C. 2921.331(B),which is a fourth degree felony, prohibits a person from willfully eluding or fleeing an officer after receiving a visual or audible signal from the police. The court noted the officer activated both lights and siren, but the defendant kept driving, travelling five miles in six minutes on a snowy, winding road. From the record, including speed, traffic violations, and the defendant’s admission he did not want the truck to be towed, the court found sufficient evidence to support the conviction.

Lesser included offense.

R.C. 2921.331(A), which is a first degree misdemeanor, prohibits a person from noncompliance of a lawful police officer. The defendant asserted the jury could have found he failed to comply with the order or signal of Deputy Titus to stop his vehicle, but did not willfully flee or elude the officer (Par. 16). The appellate court acknowledged that the misdemeanor charge was a lesser included offense.

“A jury charge on a lesser-included offense is required only where the evidence presented at trial would reasonably support both an acquittal on the crime charged and a conviction upon the lesser or inferior offense.” See, e.g., State v. Thomas, 40 Ohio St.3d 213, paragraph two of the syllabus (1988). (Par. 15). The court in Kiser noted however, a lesser included offense instruction is not warranted every time any evidence is presented on a lesser-included offense. (Par. 15). Instead, from the evidence presented, the court found the evidence did not support a conviction for a violation of R.C. 2921.33(A) and an acquittal of a violation of R.C. 2921.33(B). (Par. 17).

State v. Holden, 2026-Ohio-3 (2d. Dist.). A conviction for failing to comply with a lawful police order was affirmed. When an officer attempted to stop the defendant for speeding, the defendant accelerated. The chase lasted four minutes over an eight mile stretch with the defendant going in excess of 140 mph. After running over “stop sticks” the defendant hit two parked cars, knocking down a utility pole before stopping. His father/ passenger was severely injured.

The defendant plead guilty to the charge, a fourth degree felony. The court imposed the maximum penalty of an 18 month prison term. On appeal the defendant asserted the sentence was improperly based on extraneous matters.

A trial court has full discretion to impose any sentence within the authorized statutory range, subject to the purpose of sentencing under R.C. 2929.11 and non-exhaustive factors to consider under R.C. 2929.12.¹¹ At the sentencing hearing the court referred to the defendant’s speed, distance and duration of the pursuit, all of which are factors for a third degree felony offense. The appellate court found however, that the trial court was not listing these factors for sentencing consideration, but instead to explain to the defendant the dangerousness of his activity. (Par. 16).

In the present case the trial court referred to the presentence report as well as the defendant’s lengthy state and federal criminal record. These factors were considered on the risk the defendant would reoffend, which is within R.C. 2929.12 as a recidivism factor. As such, the court held the trial court did not impose a sentence based on factors for a third degree felony offense. In addition, the sentence imposed by the court was within the statutory range and not subject to reversal.

Diversion program procedures.

City of Cleveland v. Hall, 2026-Ohio-123 (8^th. Dist.). Defendant’s participation in diversion program over the prosecutor’s objection was reversed. The defendant was charged with assault, which as an offense of violence, disqualified her from participating in the diversion program. Notwithstanding the prosecutor’s objection, the trial court ordered the defendant’s participation in the program.

Final appealable order.

As a threshold issue, the appellate court found the placement of the defendant in the diversion program was a final, appealable order. The court found the diversion order was a final appealable order in a special proceeding within the meaning of R.C. 2505.02. Arriving at this conclusion, the court noted if the prosecution could not immediately appeal the order, the defendant’s case would ultimately be dismissed after completion of the diversion program, effectively precluding the prosecution of appellate review. (Par. 7).

Separation of powers.

Diversion programs are governed by R.C. 2935.36. It is a prosecutor’s program operated with written standards approved by the court. R.C. 2935.36(A). The court noted that both the court and the prosecutor must collaborate in implementing the pretrial diversion program. Cleveland v. Mosquito, 10 Ohio App.3d 239 (8^th. Dist. 1983). (Par. 9.). Although the trial court has the authority to recommend a defendant for a diversion program and determine if the program is successfully completed, the prosecutor is vested with discretion on whether or not to prosecute a defendant and whether a defendant is eligible for the pretrial diversion program. (Par. 10).

The court noted a diversion program requires cooperation, not usurpation, between the branches of government. As such, the dismissal of criminal charges "can be entered only with the affirmative consent of the prosecution." Cleveland v. Mosquito. (Par. 10, other citations omitted.). In the present case the court held the trial court lacked authority to refer the case to the pretrial diversion program without the prosecutor’s consent.

Driver’s license suspension issues.

State v. Redding, 2026-Ohio-128 (8^th. Dist.). An order modifying a lifetime driver’s license suspension was reversed. As part of a sentence for aggravated vehicular homicide, the court imposed a lifetime driver’s license suspension. After completion of the prison sentence, the defendant filed a motion to terminate the license suspension. The trial court granted the motion without a hearing.

Under R.C. 4510.54(B) the trial court has discretion to conduct a hearing before denying a motion to modify or terminate a lifetime driver’s license suspension.¹² A hearing is statutorily mandated, however, before the court can grant the motion. In the present case granting the motion without a hearing was violation of R.C. 4510.54(B) and held to be reversible error.

Author’s note: Modification of a driver’s license suspension may have Marcy Law implications. For a lifetime suspension, the prosecutor is required to notify the victim or the victim's representative of the date, time, and location of the hearing. R.C. 4510.54(C). Whenever a driver’s license is suspended as part of a sentence in a case with a victim, however, the victim or representative have a right to notice of the hearing, right to object, and the right to appeal, by themselves or though the prosecutor. R.C. 2930.19. See also, Ohio Const. Art. I, Sec.10a(A)(2).

Wyoming traffic stop¹³

When a police officer ran into some playground equipment while trying to catch a suspected impaired driver in a Riverton foot chase on New Year’s Eve, a local man felt badly, retrieved his rope and lassoed the suspect himself. That’s according to Lander Police Department Chief Kelly Waugh, who told Cowboy State Daily on Friday that he went to thank the man after the incident, and learned he was a champion roper.

The incident started in the All Nations trailer park on the north end of Riverton. 

There, the roper’s grandmother needed medical care, and someone called an ambulance.

Lander Police Department Officer Casey Tadewald was working in Riverton that night as part of a multi-agency DUI task force, Waugh noted.

About a half mile from the ambulance response, Tadewald had watched a white, four-door sedan roll through the stop sign at Smith Road and Webbwood, Waugh said. When Tadewald “lit him up” and tried to stop the vehicle, it sped off to the All Nations trailer park, said the chief. He said the driver rushed into the neighborhood, then fled on foot after the vehicle stopped — around the same time the grandmother was being transferred into the ambulance a short distance away.

Tadewald “took off on foot, between the trailers, running through the dark,” Waugh recounted. During the foot pursuit, a swing set assaulted Tadewald. Or as Waugh put it, the roper “saw my officer get smoked by the swing set, (so) he went in and got his rope.” Waugh’s social media post on the matter quipped, “swing sets remain undefeated in low-light conditions.”

At about that moment, nine more law enforcement officers representing four agencies — Fremont County Sheriff’s Office, Riverton Police Department, Wyoming Highway Patrol, and Lander Police Department — converged at the scene. The law enforcement presence bloomed from one officer to nine in a few seconds, said Waugh. Police arrested the roped man on suspicion of impaired driving, eluding, and police interference, said the chief.

Tadewald was evaluated for minor injuries and has since been released. “No civilians were injured, and the swing set has been cleared of suspicion,” Waugh wrote in his public statement. “Law enforcement officials commend the civilian for (his) assistance while reminding the public that the safest way to help is to be a good witness and follow officers’ directions.  "While lasso skills are not required, they are apparently not discouraged.”

The roper, whose identity Cowboy State Daily ascertained from social media exchanges, did not respond by publication time to a message request for comment.

Waugh said he was on scene and went to thank the roper. “He said, ‘As soon as I saw your officer get smoked by the swing set, I felt bad and thought I should help,’” the chief related from that exchange. There were three other people in the white sedan, Waugh said.

Two were arrested on active warrants. One had fled and hid in a trailer house, but she opened the door when an RPD officer knocked, said the chief. As for the driver, a Riverton man, he smelled of alcohol, Waugh said. “They ended up running a search warrant because he refused chemical testing,” said the chief, adding police got a search warrant for a chemical test.  The results of that blood draw test are pending.