Those who are regular readers of this blog are very familiar with the case of State v. Homan, 89 Ohio St.3d 421,  732 N.E.2d 952.  The case was a landmark as it precipitated a change in Ohio law regarding the level of compliance necessary to accept field sobriety tests (FSTs) into evidence.  The case was also important as The Ohio Supreme Court ruled that probable cause to arrest may be based on other “extrinsic” evidence notwithstanding the admissibility of FSTs.  While the case set forth a standard for the admissibility of FSTs (strict compliance with the standards of the NHTSA manual - subsequently reduced to substantial compliance by statute), the court also stated that probable cause to arrest exists even if FSTs are inadmissible if the arresting officer can point to other evidence of insobriety.
	A perfect example of the application of Homan was set forth in Fifth Appellate District case of State v. Harlan, 2011 Ohio 6884.  The defendant was stopped for failure to stay within marked lanes.  The officer observed the defendant weaving back and forth several times crossing the center and side lines of the road.  Upon investigation, the officer observed a strong odor of alcohol coming from the defendant’s person.  The defendant admitted coming from a bar where she had consumed “a couple of “shots.”  The officer performed a Horizontal Gaze Nystagmus test and found sufficient clues to warrant the arrest of the defendant.
	The defendant filed a motion to suppress.  The motion stated that the officer failed to administer the HGN test in substantial compliance with NHTSA standards. Additionally, the defendant claimed that without the results of the HGN test, the officer was without probable cause to arrest the defendant.
	The court began its discussion by agreeing that the state failed to produce sufficient evidence to show that the officer substantially complied with NHTSA standards and suppressed the HGN test.  But the court went further to state that the officer had sufficient other evidence to produce probable cause for the arrest.
	The court pointed to the fact that the traffic violation by the defendant was more than a de minimus violation.  In addition, the officer stated that a strong odor of alcohol was emanating from the defendant and, further, the defendant’s admission to having two “shots” and coming from a bar just prior to the stop.  The court concluded these facts produced sufficient extrinsic evidence for probable cause to arrest, Homan, Supra.

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.

Since the establishment of the Ohio Juvenile Court System, we have been taught that “convictions” as a juvenile are sealed and not opened resulting from a conviction as an adult.  The reason is that judgments under the juvenile system “adjudicate” juveniles as a delinquent or unruly child depending upon the seriousness of the offense and are not considered “convictions.”  Thus juvenile adjudications are considered civil, not criminal, in nature.  

This changed in 1996 when the Ohio legislature passed R.C. 2901.08, permitting the use of juvenile offenses for purposes of enhancement of subsequent charges.  Although juvenile proceedings are considered “civil’ in nature, an offender’s juvenile adjudication for OVI-type cases can be used against him under the law, State v. Hanning, 89 Ohio St.3d 86, 89, 728 N.E.2d 1059.

A recent Delaware County Court of Appeals case argued the constitutionality of the statute.   In the case, State v. Adkins, 129 Ohio St.3d 287, 2011 Ohio 3141, the defendant argued 1) the application of the statute was an unconstitutionally retroactive and 2) the statute impermissibly permits a civil dispositionas a basis for criminal enhancement as an adult.

The court denied the defendant’s first argument saying that the law is not retrospective.  It applies only to offenses after the effective date of the statute.  The current offense is the case that triggered the look back rule, not the juvenile adjudication.  Therefore, the statute is not respective in nature.

Further, the court opined that the statute is not unconstitutionally retroactive.  Using the reasoning in Miller v. Hixson, 64 Ohio St. 39, 59 N.E. 749, the court stated, “The retroactivity clause [of the Ohio Constitution] nullifies those new laws that ‘reach back and create new burdens, new duties, new obligations, or new liabilities not existing at the time [the statute becomes effective].’  The court continued its reasoning, [The defendant’s] contention that an additional burden - an enhancement on a future charge - is placed upon the juvenile adjudication is unavailing. [The defendant] is not being punished for a previous juvenile adjudication; he is being punished for a current offense.”

Therefore, when looking back for enhancement purposes, whether 6 or 20 years, a court may include any prior juvenile adjudications.

Over the last few months the following incidents have occurred between attorneys and the courts:

 
1.  An attorney enters a room where the prosecutor is located for the purpose of entering into pre-trial discussions with the prosecutor.  To their surprise, the judge is seated behind the prosecutor with the file in the judge’s possession, conducting the pre-trial.  At the same time the judge demands the defendant’s license plates stating “anyone accused of DUI in my jurisdiction must drive with yellow plates until the case is finished.”

 
2.  The defendant files a Motion for Extension of Time to File Pre-Trial Motions well within the time limits set forth by the criminal rules.  The defendant’s motion is denied by the judge with the statement that, “Defendant had plenty of time to file his motions.”

 
3.  After performing his due diligence and filing the appropriate motions with the court, the prosecutor offers the defendant a reduced charge of reckless driving.  The prosecutor and counsel for the defendant enter the judges chamber for the purpose of obtaining the judges approval.  When they enter the judges chamber they see the judge reading the police report.  The judge denies the request saying he read the report and the defendant didn’t deserve the reduction.

 
4.  The defendant files a Motion for Limited Driving Privileges pending the adjudication of the case.  The attorney for the defendant receives a call from the court stating limited driving privileges will be granted only if the defendant enters into an alcohol intervention program AND puts yellow plates on his car.

 
I address this questions to professionals reading this blog.  Are the judges in these incidents violating the defendant right to due process?  They are the trier of fact (prior to a trial by jury).  Should they be perusing the file and police report prior to any hearing related to pre-trial motions?  Should they be sanctioning the defendant prior to any adjudication of the case?Most importantly, has Ohio’s draconian DUI laws and the public pressure being applied by special interest groups affecting the proper administration of justice?

 
Have you encountered incidents such as these?  Have you argued regarding these or similar types of due process violations?  Please email me and I will pass these experiences and arguments on to others who might be suffering under the same issues.  My email address is afromet@roadrunner.com.  I look forward to hearing from you.

Many of my readers contact me, post-conviction, to complain about their attorney’s performance while representing them.  Of course, this outrage comes from the fact that the outcome was not of their liking – mostly convictions.  A number asked whether the fact they had a “bad” lawyer can be used to appeal their conviction.

 
In past blogs, I’ve discussed what, in my opinion, is the appropriate due diligence required of any attorney practicing DUI defense in Ohio (See “What Should You Expect from Your Attorney?, June 19, 2009).  But, if one appeals based upon ineffective assistance of counsel, what burden must be overcome to be successful?

 
The decision cited by most courts relating to this issue is Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674.  The decision was adopted by the Ohio Supreme Court in State v. Bradley, 42 Ohio St. 3d 136 and, most recently used in the Ohio Second Appellate District in State v. Sparks, 2011 Ohio 3868.  In that case, the Appellant argued ineffective assistance of counsel based upon the attorney’s stipulation to prior DUI convictions.

 
The court properly quoted the two-pronged test, using the Stickland court, as follows: “To reverse a conviction based on ineffective assistance of counsel, it must be demonstrated that trial counsel’s conduct fell below an objective standard of reasonableness and that his errors were serious enough to create a reasonable probability that, but for the errors, the result of the trial would have been different…Hindsight is not permitted to distort the assessment of what was reasonable in light of counsel’s perspective at the time, and a debatable decision concerning trial strategy cannot form the basis of a finding of ineffective assistance of counsel,” State v. Mitchell, Montgomery App. No. 21957, 2008 Ohio 493.

 
Using the criteria, the court reasoned, “By stipulating to a prior conviction, the prosecutor was relieved of his obligation to prove a prior, but this was not the focus of the defense and was not controverted. The stipulation may well have been a matter of trial strategy. We cannot conclude that defense counsel’s stipulation to one of Spark’s previous convictions fell below an objective standard of reasonableness, or that the outcome of the trial would have been otherwise had defense counsel not so stipulated. There is no showing on this record that the prosecutor was unable to establish a prior conviction absent the stipulation.”

 
In other words, the court found there was ample evidence of Spark’s prior convictions.  Therefore, even had his attorney NOT stipulated to the prior convictions, there was sufficient evidence before the court regarding his prior convictions and, as such, the attorney’s failure, if any, was not so erroneous as to cause a different outcome.
So, if one wishes to argue his attorney was ineffective, they must show:

 
1.  That the attorney’s actions fell below the standard that is reasonable, AND

2.  That, the actions of the attorney were so serious as to create a reasonable probability that the outcome of the trial would have been different.

 
So, the basis of an appeal for ineffective assistance counsel can not be based upon a reflection of an attorney’s strategy during trial as the higher court will not use hindsight to determine the appropriateness of the attorney’s strategy.  While strategy might not have been successful, if reasonable, the court will not remand based upon that fact.