A recent Ohio case illustrates a very important aspect of Ohio’s OVI law.  The case of State v. Lewis, 2010 Ohio 2872, exemplifies an additional consequence of one’s refusal to submit to a chemical test.

The case involved a defendant’s arrest for OVI.  The defendant refused to submit to a chemical test.  But, based upon personal observations, the accused’s traffic violations and field sobriety tests, the defendant was charged with OVI.  The defendant was eventually found not guilty of OVI and the court terminated the Administrative License Suspension.

The City of Cincinnati appealed the termination of the ALS claiming the court was wrong in terminating the ALS due to R.C. 4511.191(B) that provides for an automatic license suspension following the refusal to submit to a chemical test. R.C. 4511.191(D)(1) specifically states that “[a]ny subsequent finding that the person is not guilty of the charge that resulted in the person being requested to take the chemical test or tests under division (A) of this section does not affect the suspension.”

The appellate court agreed with the city citing the case of State v. Kurtz (Dec. 31, 1997), 2nd Dist. No. 97-CA-25.  In that case Kurtz had been stopped and refused to submit to a chemical test resulting in an ALS.  Kurtz eventually pled no-contest to a lesser charge, but the court continued to ALS citing the above statute.

So, in refusing a chemical test the violator should be aware of this additional consequence of their refusal – a continuation of the ALS even if found not guilty of OVI.

The case, State v. Simone, 2010 Ohio 1824, involved a multiple DUI offender who plead guilty and was sentenced to nine months in prison (his fourth conviction of DUI in five years).  The defendant served his six months and ten years later filed a motion to withdraw his plea.  The basis of the motion was the defendant’s claim that one of his prior pleas was uncounseled.

In its opinion, the court cited Crim R 32.1 that states:

“A motion to withdraw a plea of guilty or no contest may be made only before sentence is imposed; but to correct manifest injustice the court after sentence may set aside the judgment of conviction and permit the defendant to withdraw his or her plea.”

The court went on to say:

“It is the defendant’s burden to prove that a manifest injustice exists. State v. Smith (1977), 49 Ohio St.2d 261, 264, 361 N.E.2d 1324. The trial court should grant the motion only in extraordinary cases. Id. A trial court’s decision to grant or deny a motion to withdraw a guilty plea will not be reversed on appeal absent an abuse of discretion. State v. Brown, 9th Dist. No. 23455, 2007 Ohio 2885, at P9,  [**9] quoting State v. Atkinson, 9th Dist. No. 05CA0079-M, 2006 Ohio 5806, at P10, citing Smith, 49 Ohio St.2d at 264. An abuse of discretion “implies that the court’s attitude is unreasonable, arbitrary, or unconscionable.” Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219, 5 Ohio B. 481, 450 N.E.2d 1140.”

The court then defined “abuse of discretion” as follows:

“A trial court does not abuse its discretion in denying a motion to withdraw a plea where three elements are met. First, the defendant must have been represented by competent counsel; second the court must provide the defendant a full hearing prior to accepting the original guilty plea; and, finally, the court must provide a full hearing to the defendant, considering all the arguments in favor of withdrawal of his plea, before rendering a decision on the motion.” (Internal citations and quotations omitted). Brown at P10.”

So, if we summarize the court’s opinion, the following is obvious:

1.  A motion to withdraw a plea must be filed prior to sentencing in nearly all cases.

2.  The court will only entertain such a motion AFTER sentencing to cure some manifest injustice.

3.  It is the defendant’s burden to prove the existence of the injustice.

4.  The motion will granted only in extraordinary circumstances (which means rarely).

5.  A lower court’s failure to grant such a motion will only be overturned if the court abused its discretion.

6.  Abuse of discretion will not be granted when:

a.  The defendant was represented by a competent attorney.

b.  A full hearing was had prior to the court’s acceptance of the defendant’s original plea.

c.  The court provided a full hearing on the defendant’s motion.

As one can see, the burden on the defendant is great.  Not only must the defendant present overwhelming evidence of some patent injustice, but a higher court will not reverse or remand a lower court’s decision absent some showing of the lower court’s abuse of discretion – a very high standard indeed.

The lesson to be learned is be sure you have a full understanding of the consequences of your plea.  Be sure you retain competent counsel who is fully versed on the law and the possible sentences that could result from your plea.  If there is any issue regarding your plea, be sure your attorney enters an exception on the record.  Finally, don’t sit on your rights.  Timely filing is always an issue.

A recent Ohio Supreme Court case demonstrates the futility felt by many Defendants and their attorneys even when the higher court sustains the Defendant’s motion to suppress evidence that is fundamental to the prosecution of one accused of OVI in Ohio.

The case, O’Neill v. Mayberry, 2010 Ohio 1707, involved a defendant charged with (1) aggravated vehicular assault in violation of R.C. 2903.08(A)(1)(a), a third degree felony; (2) failure to stop after an accident in violation of R.C. 4549.02(A) and (B), a third degree felony; (3) aggravated vehicular homicide in violation of R.C. 2903.06(A)(1)(a), a second degree felony; (4) operating a vehicle under the influence of alcohol in violation of R.C. 4511.19(A)(1)(a), a first degree misdemeanor; and (5) operating a vehicle under the influence of alcohol in violation of R.C. 4511.19(A)(1)(f), a first degree misdemeanor. A conviction of the more serious charges had to be predicated on a successful prosecution of one of the charges under R.C. 4511.19.

The trial court denied O’Neill’s motion to suppress the results of his blood alcohol tests performed after his arrest. Pursuant to a negotiated plea agreement, O’Neill entered pleas of no contest to Counts 1, 2, 3, and 5, Count 5 being the OVI charge. In exchange, the state dismissed Count 4, the per se violation, and O’Neill was sentenced on his no contest pleas. The Defendant appealed his convictions and the Supreme Court sustained his motion to suppress. resulting in the dismissal of the per se violation. It is important to note that the court in its opinion stated that “…O’Neill’s convictions for aggravated vehicular homicide and aggravated vehicular assault depended upon a violation of R.C. 4511.19.”

Nonetheless, the state re-instituted prosecution of O’Neill on the original charges. O’Neill attempted to have these charges dismissed by filing a Writ of Prohibition with the Supreme Court claiming the lower court no longer had jurisdiction to try the charges.

The Ohio Supreme Court disagreed saying, “[i]n the absence of a patent and unambiguous lack of jurisdiction, a court having general subject-matter jurisdiction can determine its own jurisdiction, and a party challenging that jurisdiction has an adequate remedy by appeal,” State ex rel. Shimko v. McMonagle (2001), 92 Ohio St.3d 426, 428-429…Upon remand from an appellate court, the lower court is required to proceed from the point at which the error occurred…Accordingly, when we remanded the case to the trial court following our determination that the trial court should have granted the motion to suppress, respondent was required to proceed from the point at which the error occurred, that is, after he denied the motion to suppress but before the plea agreement in which the state dismissed the general DUI charge.”

So, while the per se violation was dismissed, the state was permitted to go forward on the OVI charge, thus predicating a conviction of the more serious offenses based upon a conviction of that OVI case.

The Gant decision may be a bit afield of the issue of DUI, but it is important that anyone being arrested for a traffic offense be aware of their rights against illegal searches. To summarize Gant, the US Supreme Court limited an arresting officer’s right to search the vehicle when 1) the occupants are outside the vehicle and no longer have access to the vehicle and 2) there is no indication that the search was initiated to preserve evidence of the offense for which the offender was arrested.

A recent Ohio decision used the Gant decision in determining an officer’s right to search even if the subject of the arrest was other than a traffic violation. The case, State v. Gilbert, 184 Ohio App.3d 642 involved the arrest of the driver and his passengers. The automobile was stopped for a traffic offense. A warrant search found that the driver was driving under a suspended license and the front-seat passenger had an outstanding warrant for robbery. All three occupants were vacated from the car and the arresting officer proceeded to make a search of the vehicle.

The syllabus stated the following:

“Police may search a vehicle incident to a recent occupant’s arrest only when the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search. Circumstances unique to the vehicle context justify a search incident to a lawful arrest when it is reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle.”

The court’s opinion expanded on this point by stating:

“…the search is not justified under either branch of the standard established in Gant. When the search occurred…and all occupants of the car had been removed and were under police control. Thus, at the time of the search, no occupant had access to, or was within reaching distance of, the vehicle’s passenger compartment. There is also no indication that the search was initiated to discover evidence relevant either to the crime that had been committed by the driver, or the crime for which there was an outstanding warrant to arrest the front-seat passenger. A passenger in the front seat had also been arrested on an outstanding warrant for robbery, but there is no indication that the officers were searching for evidence relevant to that crime, or that evidence was likely to be present relevant to that crime, which would have occurred some time in the past, since a warrant had been issued.”

A major debate is raging in Ohio relative to the right of an officer to search the vehicle after an arrest as a result of the Gant decision. The Gilbert case, I believe, further defines the limits of a police office’s right to search a vehicle for ANY reason. It appears Gilbert estops the officer from conducting an “inventory” search subsequent to arrest. Unless the search can be justified in furtherance of a search to accumulate evidence of the crime for which the accused is being charged, a search warrant must be obtained prior to any search.

Suppression and dismissal motions are a vital resource for any defendant fighting a charge of OVI in Ohio. This blog has written several articles referring to various motions filed by counsel in defense of an OVI charge. Theses discussion, for the most part, were substantive in nature.

A recent Ohio court of appeals case addresses the rules governing how a motion is presented. It typifies the long held rule that motions can not be generic. They must be written with particularity. The case, In re Minnick, 2009 Ohio 5274, touches on a subject very relevant to motion practice in Ohio- the issue of “particularity.” In this case, the defendant was stopped and eventually charge for OVI. The defense counsel filed a motion to suppress, among other issues, the results of the breathalyzer.

In his motion the defendant stated, “…[he is moving] for a suppression of the evidence obtained by the Van Wert County Sheriff’s Department from the warrantless seizure of the Defendant[.]” The motion then proceeds to list five particular items of evidence that the defendant wanted to be suppressed, including the results of the breathalyzer. The defendant also attached a memorandum in support of his motion to suppress. The bulk of this motion discussed the law surrounding the suppression of evidence flowing from an illegal stop, detention, and/or arrest. The motion also alleged that the field sobriety tests were not done in strict compliance with the applicable standards and were inadmissible. In conclusion, the defendant’s motion read: “Based upon the foregoing the Defendant asserts that there was not sufficient evidence to warrant the administration of the field sobriety tests, the portable breath test and the BAC Datamaster test.”

The lower court denied the defendant’s motion to suppress the results of the breathalyzer. The defendant appealed.

In analyzing the merits of the case, the Third Appellate District Court (Van Wert County) centered its attention on the generic nature of the pleading itself. The court quoted Criminal Rule 47 that stated the rule required, “[a] motion, other than one made during trial or hearing, shall be in writing unless the court permits it to be made orally. It shall state with particularity the grounds upon which it is made and shall set forth the relief or order sought.” In keeping with this rule, the Ohio Supreme Court has held that “the accused must state the motion’s legal and factual bases with sufficient particularity to place the prosecutor and the court on notice of the issues to be decided.” State v. Shindler (1994), 70 Ohio St.3d 54, 1994 Ohio 452, 636 N.E.2d 319.

The court went on to say, “While courts vary in their determinations as to what constitutes “sufficient particularity,” at a minimum, an accused is required to identify some section of the Ohio Administrative Code that is implicated and/or make some sort of assertion that the State failed to follow the proper standards in administering the breath test.”

In sustaining the lower court’s decision, the appellate court concluded that, “The motion contained no allegation that the State violated any one of these requirements nor was there any citation to a particular OAC section that was alleged to have been violated. Moreover, [the defendant] never requested in his motion that the results of the BAC Datamaster be suppressed because of non-compliance with the OAC. Rather, [the defendant] simply made a blanket statement of what the law required the State to prove in order to admit the results in evidence and then requested that the BAC Datamaster results be suppressed because there was not sufficient evidence to warrant [the arresting officer] to administer this test.” In summary, the appellate court opined that the defendant’s motion failed to contain sufficient particularity and, for that reason, the lower court was correct in suppressing the motion.

This appellate court sustained the long held rule that generic motions will not be tolerated. Therefore, in preparing any motion to suppress, the pleading should contain, at minimum:

1. A statement of what the defendant is attempting to suppress,

2. A cite as to the particular administrative code section or what legal right was violated, and

3. A factual summary of the actions of the arresting officer or entity that violated that OAC section or right.