In Ohio, there are three forms of pleading in traffic or criminal cases, guilty, not guilty and not guilty by reason of insanity.  For purposes of this blog entry, I will not be discussing the third.  But, the reader should be aware of the issues involved in entering a plea of guilty or no contest.

A plea of “guilty” is a complete admission of guilt, Crim.R. 11(B)(1).  A plea of no contest  indicates that, while you are not admitting guilt, you do not dispute the charge.  In most instances, a no contest plea prevents any conviction being used in a civil action.  This is most prevalent in traffic accident cases where the defendant is charged with causing the accident.  By pleading no contest, the defendant can adjudicate the traffic case and prevent their plea from being used in a subsequent civil law suit for damages.

In the case of an OVI your plea takes on a much important role.  The nature of your plea determines your rights on appeal.  An example of this issue was illustrated in the recent case of State v. Ramsey, 2012 Ohio 134.  In the case, the defendant was arrested for OVI.  He filed several pre-trial motions which were all denied.  Subsequently, he entered a plea guilty to a lesser and charge and then appealed the lower court’s denial of his motions.

The appellate court refused to rule on his appeal reasoning the “A plea of guilty is a complete admission of guilt...A defendant who enters a plea of guilty waives the right to appeal all nonjurisdictional issues arising at prior stages of the proceedings, although the defendant may contest the constitutionality of the plea itself. Ross v. Common Pleas Court of Auglaize Cty. (1972), 30 Ohio St.2d 323, 285 N.E.2d 25. "Thus, by entering a guilty plea, a defendant waives the right to raise on appeal the propriety of a trial court's suppression ruling." State v. McQueeney, 148 Ohio App.3d 606, 774 N.E.2d 1228, 2002 Ohio 3731, ¶13.

Therefore, once a defendant pleads guilty they waives all appealable issues other than the plea itself.  Therefore, be forewarned, if your intent is to appeal the findings of the lower court, an entry of no contest will preserve that right as it is not a complete admission of guilt but merely an admission to the facts.

As many who follow this blog are aware, the sentence for an OVI can not be enhance unless the prior conviction was “counseled.”  Therefore, if one is convicted of a subsequent OVI, the court can not sentence a defendant to the enhanced penalties unless the defendant was properly enlightened as to their rights when they pled in the prior OVI.  The courts use criminal rule 44(B) as the criteria.  This rule requires the court to fully outline the defendant’s constitutional rights prior to taking their plea.  If the prior court properly outlines the defendant’s rights, as set forth in Rule 44(B), the defendant is said to be properly “counseled” even if the defendant pleads without being represented by an attorney.

A recent Second Appellate District Court (Montgomery County) case has enhanced a court’s duties as it relates to the explanation of these rights. In the case of State v. Gross, 2011 Ohio 6490, the court stated that merely telling the defendant has a right to counsel is insufficient.

The court began its synopsis of the case by stating, “Courts are to indulge every reasonable presumption against the waiver of a fundamental constitutional right, including the right to counsel. The waiver must affirmatively appear in the record, and the State bears the burden of overcoming presumptions against a valid waiver.”

The court went on, “For a waiver of the right to counsel to pass constitutional muster, it must be knowing, intelligent and voluntary...At the core of Crim. R. 44(B) is the offender's inability to obtain counsel. The trial court in a criminal case must inquire fully into the circumstances surrounding an accused's inability to obtain counsel...In order to ensure that a waiver of counsel is made knowingly, intelligently and voluntarily, the trial court must make sufficient inquiry to determine whether a defendant fully understands and intelligently relinquishes that right.”

The court further explained, “To discharge this duty properly in light of the strong presumption against waiver of the constitutional right to counsel, a judge must investigate as long and as thoroughly as the circumstances of the case before him demand. The fact that an accused may tell him that he is informed of his right to counsel and desires to waive that right does not automatically end the judge's responsibility. To be valid such waiver must be made with an apprehension of the nature of the charges, the statutory offenses included within them, the range of allowable punishments thereunder, possible defenses to the charges and circumstances in mitigation thereof, and all other facts essential to a broad understanding of the whole matter. A judge can make certain that an accused's professed waiver of counsel is understandingly and wisely made only from a penetrating and comprehensive examination of all the circumstances under which such a plea is tendered.”

The court concluded, “A sketchy or minimal inquiry touching upon only some of the factors enumerated ...will not adequately establish an effective waiver of counsel.”

In the prior case, the court used a written outline to explain the defendant’s constitutional rights.  In its outline, the court merely explained to the defendant that he had a right to counsel and asked if he wished to waive that right.  The defendant answered affirmatively.  The lower court stated this was insufficient and refused to enhance the defendant’s sentence for the subsequent OVI for which he was charged.  The state appealed.  The Second Appellate Court agreed with the lower court using the reasoning set forth above. As the court stated, “...The fact that an accused may tell him that he is informed of his right to counsel and desires to waive that right does not automatically end the judge's responsibility. To be valid such waiver must be made with an apprehension of the nature of the charges, the statutory offenses included within them, the range of allowable punishments thereunder, possible defenses to the charges and circumstances in mitigation thereof, and all other facts essential to a broad understanding of the whole matter.”

Readers of this blog should be familiar with several articles I’ve written regarding probable cause to arrest.  Basically the term is defined as follows: “Probable cause to arrest without a warrant exists where, based on the totality of the circumstances, an officer possesses sufficient information to cause a reasonable and prudent person to believe that a suspect is committing or has committed a criminal offense,  Texas v. Brown (1983), 460 U.S. 730, 742, 103 S.Ct. 1535, 75 L. Ed. 2d 502; Illinois v. Gates (1983), 462 U.S. 213, 230-232, 103 S.Ct. 2317, 76 L. Ed. 2d 527.

But what if the alleged offender is less than 21.  According to the First Appellate District (Hamilton County), probable cause to arrest requires less evidence of impairment.  In the case, State v. Carroll, 2008 Ohio 6832, the defendant, who was 18, was stopped for speeding.  While addressing the defendant, the officer smelled alcohol on the defendant’s breath, and observed that his eyes were glassy and bloodshot.  The defendant admitted consuming beers earlier.  The officer had the defendant exit his vehicle and perform field sobriety tests.  The defendant passed all three tests.

The lower court granted the defendant’s motion to suppress stating that the officer lacked probable cause to arrest the defendant as there was no evidence of impairment.  The appellate court argued impairment is not relevant and reversed and remanded the case.

The court’s analysis of the case began with a citation of R.C. 4511.19(B)(3) which prohibits anyone under 21 years old from driving with a blood alcohol content (BAC) of.02 or higher, “regardless of actual impairment.”

The court went on to say “Field sobriety tests can reveal physical impairment that sometimes accompanies a higher BAC...In determining what constitutes probable cause to arrest for an underage driving under the influence of alcohol (DUI) offense, an officer must look for less obvious indicators of alcohol consumption when assessing an underage drinking driver because these indicators are naturally more subtle than the indicators in a per se offense with a higher prohibited blood alcohol content level. Common sense can and should play a role in an arresting officer's probable-cause determination in an underage DUI case, given that the prohibited per se limit is so minimal. However, an officer should not look for "slight indicators of impairment" when deciding whether to arrest for a violation of R.C. 4511.19(B)(3), since impairment is not at issue.”  Therefore, the fact that the defendant passed all three field sobriety tests was irrelevant.

The appellate court quoted the lower court and, in relevant part, found that 18-year-old had been speeding, that he had smelled of alcohol, that he had glassy and bloodshot eyes, and that he had admitted to drinking a couple of beers a few hours earlier.  Under the circumstances, the court found that the office had probable cause to arrest the defendant therefore, stating that the results of field sobriety tests has no relevance in determining probable cause to arrest a minor for OVI.

Past blogs have discussed the term “substantial compliance.”  The term is used contextually in at least the area of adherence to the requirements for the Ohio Administrative Code as relates to chemical testing and in conformity with the requirements of NHTSA for Field Sobriety testing.  While it is a term used in at least two areas of OVI judicial procedure, a definitive definition of the term has alluded Ohio courts.

A recent Third Appellate District case has come closer to defining what is meant by “Substantial Compliance.”  The case, State v. Kitzler, 2011 Ohio 5444, involved an attempt by the defendant to suppress field sobriety tests.  While the officer testified as to the administration of the test and his training and education regarding field sobriety tests, the prosecution failed to introduce into evidence the applicable standards required.

In its opinion, the court stated, “It is only logical that in order to prove substantial compliance with a given standard, there must be at minimum some evidence of the applicable standard for comparative purposes. Accordingly, where the suppression motion raises specific challenges to the field sobriety tests, the state must produce some evidence of the testing standards, be it through testimony or via introduction of the NHTSA or other similar manual or both.”

The court went on to state “...the State did not meet its burden of proof as to the field sobriety tests and they should have been suppressed.”

Therefore, this court has set forth a three part axiom to prove substantial compliance:

1.  The state must introduce evidence of the administration of the test,
2.  The state must introduce evidence of the officers training and education sufficient to show the officer’s competence in administering the test, and
3.  The state must introduce evidence of the applicable standard that must be met.

Only when this three part test is proven will the state meet its burden of substantial compliance.

If you are a regular reader of this blog, you will remember my discussion of mandatory record keeping relating to breath testing equipment, as required by the Ohio Administrative Code (OAC) and The Ohio Department of Health (ODH).

One of the requirements relate to standard periodic testing required of the breath testing devise and those qualified to administer a breath test using a certified devise.  This testing must be performed by an individual designated as a “Senior Operator” by the Ohio Administrative Code.  The qualifying criteria for a senior operator is as follows:

1.  Must be a high school graduate or taken a General Education Development Test“ (GED), and
2.  Be a certified law enforcement officer sworn to enforce section 4511.19...of the Ohio Revised code or equivalent statute or ordinance, and
3.  Demonstrate a competency to maintain or care for and perform instrument checks by successfully completing a basic senior operator, upgrade or conversion training course for the approved instrument for they are seeking the permit.

The ODC further requires a yearly renewal of that permit by successfully completing an in-service course for the applicable device, including review of self-study materials furnished by the ODH.

A recent lower case decision relating to these requirements demonstrates the necessity to be thorough in the investigation of any per se violation.  The case, State of Ohio v. O’Dell, 164 Ohio Misc.2d 36proves the fallacy inherent in thinking that the institutions of government always to their job.

The defendant filed a Motion to Suppress arguing that the state failed to substantially comply with the OAC in the maintenance of the breath testing device.  The officer who testified was the arresting officer and claimed he was a senior operator which qualified him to administer a breath test using the BAC Datamaster.  During his testimony, the trooper testified the director of the ODH did not give him any self-study materials prior to his most recent renewal.  The trooper further testified that had not taken any refresher course relating to the BAC Datamaster.

The court, in its opinion, outlined the various requirements set forth by the OAC relating to the requirements prior to the renewal of a Senior Operator’s Permit and the failure to comply with these requirements.  The court concluded its discussion by stating:

“Words and phrases in laws and rules must have meaning.  Even if the director of health chose to ignore his own rules by not requiring [the trooper] to complete an in-service course and review self-study materials provided by the director, the court cannot ignore the rules, which was not followed in this case.”

The reader is cautioned that this cases arises from the Franklin County Municipal Court and, while this court is highly respected in the state, its opinion only influences cases within the jurisdiction of that court.  While American jurisprudence evolves from historical court opinion, other local or appellate courts may not agree with the opinion expressed by the Franklin County Municipal Court.  But, having knowledge of this decision may impact on any OVI per se case.