Speedy Trial Waivers for Subsequent Charges

Ordinarily, at the defendant’s first appearance, they are asked to file a speedy trial waiver and this is usually a perfunctory task that is indorsed by most attorneys during the early stages of an OVI criminal proceeding.  Under Ohio law, misdemeanors must be tried within 90 days of arrest and felonies within 270 days.  Most attorneys accept the speedy trial waiver as the ability to obtain the information necessary to properly defend a client and research and prepare appropriate motions will, ordinarily, take this amount of time, if done appropriately.

In some instances the charging entity will first charge the defendant with an OVI while awaiting results of a chemical test.  After receiving the results of the test, the government will then charge the defendant with the per se violation.  But what happens to the defendant’s speedy trial rights in relation to this second charge?  Historically, the courts have assumed the speedy trial waiver covers all subsequent charges arising out of the initial arrest.  A recent municipal court case, argues contrary to that belief.

In the case of The State of Ohio v. Thomas, 166 Misc.2d 5, 2011 Ohio 6921, the Morrow County Municipal Court argues that each charge is distinct and separate and any speedy trial waiver must be obtained for each charge.

In the case, the defendant was charge with OVI on June 24, 2009.  At his initial appearance, he filed a written waiver of speedy trial.  On March 2, 2010, 8½ months later, the state added the charge of a prohibited concentration under ORC 4511.19(A)(1)(b).  The defendant filed a motion to dismiss this charge basing his motion on the speedy trial provisions of state law.  The state opposed the motion on the basis that the blood-test result constituted an additional fact unknown to the state at the time of the of the intitial, general charge, arguing that the state was therefore entitled to a new time limit during which to prosecute the subsequent charge.

In its analysis, the court set forth the following: “At issue in this case is whether a blood-test result from a chemical test taken at the time of defendant's initial arrest constitutes a fact unknown to the state at the time defendant was charged with his initial OVI. Resolution of this issue is crucial in determining whether defendant's speedy-trial rights were violated. In order to determine the statutory time limit that the state has to bring the defendant to trial, it must be determined when the time for each filed charge began to run. To do this, the court must determine whether the state knew of the additional fact(s) necessary for a probable-cause determination for the subsequent prohibited-concentration charge when the initial, general charge was filed. Once the court determines when the statutory time period began to run for each charge, the court must then decide whether the defendant's speedy-trial waiver for the general charge also applies to the prohibited-concentration charge.”

After outlining the defendant’s rights to a speedy trial, it opined: A waiver of the right to a speedy trial applies only to the current charge. It is not applicable to additional charges filed subsequent to the execution of the waiver that arise from different facts or facts unknown to the state at the time of filing the initial charge. See State v. Adams (1989), 43 Ohio St.3d 67, 538 N.E.2d 1025; State v. Baker (1997), 78 Ohio St.3d 108, 1997 Ohio 229, 676 N.E.2d 883; State v. Parker, 113 Ohio St.3d 207, 2007 Ohio 1534, 863 N.E.2d 1032.

In its synopsis the court outlined the following criteria:

“A waiver of the right to a speedy trial applies only to a current charge. It is not applicable to additional charges filed subsequent to the execution of the waiver that arise from different facts or facts unknown to the State at the time of filing the initial charge.

“There are two scenarios in which the State is not held to the speedy-trial time limit of the initial charge when filing subsequent charges. A second charge filed after the initial charge will run on its own time limit, beginning from the time the State filed the subsequent charge, when (1) the additional criminal charge arose from additional facts not present at the time the initial charge was filed or (2) the State did not know of the additional facts that supported the probable cause to file the subsequent charge at the time the initial charge was filed.”

“Most appellate districts in Ohio consider lab reports or test results to be additional or unknown facts, of which the State is unaware when an initial charge is filed. Those lab reports or test results are needed to make the determination of probable cause to file additional charges. For this reason, test results constitute additional facts unknown to the State at the time of filing an initial, general charge. Any subsequent prohibited-concentration charge does not relate back to an initial charge for speedy-trial purposes, and the State has a separate time limit to bring a defendant to trial, beginning when the subsequent charge is filed.”

The court concluded: “A chemical test of a defendant's blood, breath, or urine cannot be requested from a driver until after probable cause to arrest for operating a motor vehicle under the influence of alcohol (OVI) exists. However, the necessary probable cause to arrest at the time of the request exists only for the R.C. 4511.19(A)(1) general OVI charge. The test result of a chemical test is an essential element of the prohibited-concentration charge. R.C. 4511.19(A)(1)(b). Therefore, additional probable cause is necessary to file the prohibited-concentration charge that arises from the result of the blood, breath, or urine test. U.S. Const. amend. IV, Ohio Const. art. I, § 14 requires that all warrants be supported by probable cause. This test result is unknown at the time of the initial, general charge. When the test result becomes available and indicates a prohibited-concentration of alcohol or drugs in a person's system, then that test result constitutes the additional probable cause necessary to file a subsequent prohibited-concentration charge.”

Therefore, the state is obligated to obtain a separate speedy trial waiver under these circumstances.

(It is important to note this is the opinion of one municipal court.  As such, the ruling only applies to the jurisdictions within this municipal court’s juristidiction.  The opinion may or may not be sustained by other courts in the state.  But this well-thought-out opinion may influence other courts to adopt its findings.)
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