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.

 
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.

During the trial on the OVI charges, the prosecutor introduced the defendant’s felony conviction which the defendant, on appeal, claimed was irrelevant and prejudicial.  In other words, the defendant claimed the introduction of the felony conviction was made merely to inflame the jury, thus prejudicing the defendant’s right to a fair trial.
The 10th District Court of Appeals took the defendant’s appeal under advisement.  The appellate court, in its opinion, opined that, notwithstanding the introduction of the felony conviction, the evidence was so overwhelming the introduction of the conviction was not prejudicial.
To quote the court, “We conclude that appellee provided overwhelming evidence to support appellant’s conviction for OVI per se. Thus, even assuming it was error to admit the evidence of appellant having a permit to carry a concealed weapon and possessing a weapon at the time of these offenses, we fail to find that but for the error the outcome of the appellant’s trial would clearly have been otherwise…”
So, when appealing any lower court decision, the appellant must be aware of the double burden that must be overcome.  The appellant must show:
1.  The lower court made an error of law, and2.  The error was so prejudicial as to materially affect the outcome of the trial.
So remember, just because the lower court made an error does not guarantee you will win your appeal.

 
The case, State v. Curtis, 2011 Ohio 3298, involved issues of proper blood draw procedures, compliance with the mandates of The Ohio Administrative Code and the controversy surrounding, O.R.C.2945.75(B), the right to introduced certified copies of judgment entries in lieu of live testimony from the convicting court.

 
During its discussion of these issues, the court noted that the defendant failed to bring them to the attention of the lower court by way of pre-trial motions or raise the issues during trial and, as a result, severally restricted the defendant’s arguments relating to those issues and shifted the burden to the defendant rather than the state.

 
In the defendant’s first assignment of error the defendant asked the court to reverse his conviction for OVI as his conviction was based upon unreliable blood evidence.  The facts of the case are compelling as the blood sample was not refrigerated as required, an uncertified laboratory performed the test, the “chain of custody” was questioned, and the blood was drawn more than three hours after the incident.

 
The court began its analysis by stating that the defendant’s failure to objection to the introduction of the test by a pre-trial motion, waived the state’s requirement to lay a foundation for its admissibility.  Having said, that, the court, nonetheless, opined regarding the admissibility of the evidence notwithstanding the defendant’s failure to address the issue in the lower court.

 
The court stated, “…the three-hour time limit set forth in R.C. 4511.19(D)(1)(b) and referenced by appellant, we point out that this requirement is set forth in the statutory provision that addresses offenses involving “per se” violations…In  Newark v. Lucas (1988), 40 Ohio St.3d 100, the court found where the test results are not dispositive to a determination of guilt or innocence, such as in a situation involving an alleged “impaired” violation, the fact that the blood was withdrawn outside the statutory time frame does not diminish the probative value of the results in a prosecution for an “impaired” violation.”

 
In summary, the court found that the three hour rule only applies to prosecutions founded on a chemical test and does not apply to prosecutions based upon impaired driving only.

 
The defendant went on to argue the test’s admissibility due to the fact that chain of custody requirements were not met.  The court stated, “…when an accused challenges the admissibility of a chemical test based upon a failure to comply with an Ohio Department of Health regulation, the state need only demonstrate substantial compliance…Moreover, once the state has demonstrated substantial compliance, the burden shifts back to the accused to show that he was prejudiced by less than strict compliance. State v. Plummer (1986), 22 Ohio St.3d 292, 295.”  After citing evidence presented at trial, the court was satisfied that the state had substantially complied.

 
Finally, the defendant argued his procedural and substantive due process rights were abridged when the court permitted certified copies of his prior convictions to be admitted without requiring oral testimony by representatives of the lower courts.  Again, the court reiterated that the defendant failed to address this constitutional issue at trail, but nonetheless addressed this issue.  The defendant argued that O.R.C. 2945.75(B)(2), which permits the introduction of certified court records in lieu of actual testimony, is unconstitutional as it “shifts the burden of proof and relieves the prosecution of its burden of proving all of the elements of appellant’s prior convictions beyond a reasonable doubt.”

 
The court said, “In conducting a substantive due process analysis, we must determine whether appellant has invoked a “fundamental” liberty interest, which would then trigger “strict scrutiny” review….under strict scrutiny review, a law will be invalidated unless the state demonstrates that the law is narrowly tailored to serve a compelling state interest. In the instant case, appellant has failed to identify the “fundamental” interest he asserts has been violated by R.C. 2945.75(B)(2). Thus, we analyze this under a “rational basis” review.”

 
“Under rational basis review, the statute will be upheld if it is reasonably related to a legitimate governmental interest. Id. at ¶25, citing Am. Assoc. of Univ. Professors, Cent. State Univ. Chapter v. Cent. State Univ., 87 Ohio St.3d 55, 1999 Ohio 248.”  The court went on, “Appellant has not presented an argument as to how this subsection of the statute would fail under a rational basis review and we fail to see how R.C. 2945.75(B)(2) implicates appellant’s constitutional rights. Like R.C. 2945.75(B)(1), which appellant has not challenged, R.C. 2945.75(B)(2) permits the State to make a prima facie showing as to appellant’s prior convictions. However, it does not relieve the State of its burden of proof nor shift the burden of proof to the accused….it allows the accused the opportunity to rebut the record…”

The court denied the defendant’s argument.

 
So, what do we learn from such a case?  First, is the importance of setting forth, by way of pre-trial motions and during trial, any potential issue on appeal.  Second, properly set forth, on the record, the basis for your argument, stating with specificity, the factual grounds for your argument.  A failure to do either of these severally handicaps the defendant’s appellate arguements.

 
Seven Hundred of the controversial breathalyzers were purchased by the Ohio Department of Health with a federal grant and almost immediately drew criticism from the defense bar because the machine has been rejected by many states due to the manufacturer’s refusal to subject the machine’s internal software to review.

 
Of course, the accuracy of the machine is being debated throughout the state with pros and cons falling on whichever side of the legal coin they fall.  Prosecutors and the Department of Health say the machine works perfectly and defense attorneys and due process advocates claim the machine gives fall positives due to heat and humidity and identify other substances as alcohol.  As a result, the machine is not being used in urban counties but are prevalent in many rural counties.  Urban counties rightfully have begged off the use of the machine until a definitive decision has benn made regarding the admissibility of the breathalyzer’s results.  Because there are so many more DUI/OVI cases in these counties, the cities have decided, at present, to avoid clogging their courts with motions to suppress.

 
The machine’s major benefit is its portability.  Officers in the field can carry the machine with them and test drivers without the time consuming task of taking the driver into custody and transporting them to the local police station where the driver can be tested on a stationary machine.

 
It is important to note that the case denying the admissibility of breath evidence only applies to cases within the jurisdiction of The Circleville Municipal Court.  But, I suspect many more of these types of cases will be filed in other courts where the machine is being used and appeals will be filed and, finally, The Ohio Supreme Court will make the final decision regarding the use of the Intoxilizer 8000′s findings.  Stay tuned!

 
A recent of Ohio case demonstrates a further swing toward law enforcement.  The case, State v. Capehart, 2011 Ohio 2602, involved the arrest of an individual subsequent to a tractor accident.  The officer who came to assist observed a number of characteristics of alcohol impairment – glassy eyes, slurred speech, a smell of alcohol – along with several beer can found around the vicinity of the accident.

 
The defendant was taken to the hospital where he was read the rights set forth on the back of Form 2255 (consequences of his failure to take a chemical test).  The defendant agreed to submit to a blood test and a BAC of .31 was found.
During the subsequent prosecution of his case, the defendant filed a motion to suppress which was denied by the court stating the defendant had volunteered to take the test and, therefore, it was not an illegal search and seizure.

 
But, the court did not stop there.  Uncharacteristically, the court went on in its opinion to render its opinion regarding a scenario wherein a defendant had not volunteered to take a blood test.  The court, in analyzing such a scenario stated:
“…certain situations, such as where there is imminent danger that evidence will be lost or destroyed if a search is not conducted immediately, “present exigent circumstances that justify a warrantless search.” State v. Moore, 90 Ohio St.3d 47, 52, 2000 Ohio 10, 734 N.E.2d 804; State v. Christopher, Clermont App. No. CA2009-08-041, 2010 Ohio 1816, ¶32.  The United States Supreme Court in Schmerber v. California (1966), 384 U.S. 757, 86 S.Ct. 1826, 16 L. Ed. 2d 908, determined that a warrantless seizure of a blood sample for purposes of testing an individual’s alcohol level could be justified based on exigent circumstances resulting from the evanescent nature of the evidence, i.e., the fact that the level of alcohol in blood dissipates over time. In so holding, the Supreme Court set forth certain criteria to be used in determining if such an intrusion violates the Fourth Amendment: (1) the government must have a “clear indication” that incriminating evidence will be found; (2) there must be a search warrant or exigent circumstances, such as the imminent destruction of evidence, to excuse the warrant requirement; and (3) the method used to extract the evidence must be reasonable and must be performed in a reasonable manner. Id. at 770-772; Christopher at ¶32; State v. Troyer, Wayne App. No. 02-CA-0022, 2003 Ohio 536, ¶14. In a recent case similar to the one before us, this court had occasion to consider a warrantless seizure of a blood sample and found it to be justified under Schmerber. State v. Palmieri, Butler App. No. CA2009-12-294, 2010 Ohio 5667.”

 
“In the present case, based on appellant’s bloodshot eyes, slurred speech, odor of alcoholic beverage on his person, beer cans nearby, and statements admitting to the consumption of beer, the officer had probable cause to believe appellant  had been driving under the influence of alcohol, and therefore, there existed a clear indication that a blood-alcohol test would reveal incriminating evidence. See State v. Woods (Sept. 9, 1991), Butler App. No. CA90-07-125, 6-9, 1991 Ohio App. LEXIS 4210; see, also, State v. Hessel, Warren App. No. CA2009-03-031, 2009 Ohio 4935, ¶23; State v. Henry, Preble App. No. CA2008-05-008, 2009 Ohio 10, ¶44-45; State v. Hill, Coshocton App. No. 2008-CA-0011, 2009 Ohio 2468, ¶21.”

 
“Furthermore, exigent circumstances justified the warrantless search. See Woods at 11, 1991 Ohio App. LEXIS 4210; Troyer at ¶27-28. These include the rapid rate at which alcohol diminishes in the blood and the time that had already passed since appellant drove his tractor into the ditch. Such circumstances indicate there was an imminent danger that the evidence would be lost if the blood sample was not drawn immediately.”

 
“Finally, because the blood sample was drawn by trained medical personnel using medically acceptable procedures, it is clear that the method used to extract the evidence was reasonable and performed in a reasonable manner. Cf. State v. Starnes (1970), 21 Ohio St.2d 38, 43, 254 N.E.2d 675 (finding the Supreme Court’s holding in Schmerber authorized the administration, over the objection of the accused, of the tests specified in R.C. 4511.191).”

 
In conclusion, the court said, “…we find the warrantless search and seizure of appellant’s blood for purposes of testing his alcohol level did not violate appellant’s Fourth Amendment rights and was justified regardless of consent under the principles outlined by the Supreme Court in Schmerber.”

 
So, will this case embolden law enforcement to order blood draws when a defendant is taken to the hospital?  Will law enforcement transport a defendant to a hospital and order hospital personnel to strap that person down and forcibly take a blood draw?  One can only hope that reasonable minds will prevail.  But, only time will tell!

 
This trend involves the strict adherence to Criminal Rule 16(D).  The Ohio Rules of Criminal Procedure provide prescribed guidelines for the administration of criminal cases in Ohio. All Ohio courts follow these rules during the prosecution of an OVI/DUI case.  While the rules do set forth specific requirements, interspersed with these rules is verbiage that does permit courts discretion in the application of those rules permiting expansion and contractions “in the interests of justice.”

 
But, more and more courts are using the rules to cut off a defendant’s due process rights by unfairly requiring strict compliance, rather than the flexibility built into the rules.  An example of the trend is the use of strict compliance with Criminal Rule 16(D).  The rule reads: “All pretrial motions…shall be made within thirty-five days after arraignment or seven days before trial, whichever is earlier.”  But, built into the rules is the flexibility to expand that time frame.  The rules goes on to say: “The court in the interest of justice may extend the time for making pretrial motions.”

 
From a practical standpoint it is nearly impossible to comply with this rule.  The due diligence required in defending an OVI/DUI case almost always requires more than 35 days to complete.  This is especially true when the prosecution fails to provide all the discovery requested and the defendant must continually contact the prosecutor to obtain this evidence or, worse, must address the issue by way of a motion to the court.

 
For example, the first pre-trial is normally set two to three weeks after the initial appearance.  In most instances this is the first time defense counsel will have an opportunity to review the police report and other pertinent information provided by the prosecution.  Invariably, field and booking tapes are not provided nor is information regarding compliance with chemical test procedures.  In addition, a reading of the information provided at this pre-trial may point to other evidence that the defense may want to investigate.  After the first pre-trial, due diligence requires a view of the field and booking videos (when received) and a visit to the police department or testing laboratory to review compliance with required procedures. In most instances, all these actions, plus the mandated research regarding any anomalies found, brings one well past the 35 day requirement.

 
Generally, most courts are extremely flexible in regard to the enforcement of Criminal Rule 16(D).  In fact, most courts routinely allow the filing of pre-trial motions past the required date without the necessity of filing a motion to do so.  But an alarming number of municipal courts are now using this rule to curtail valid pre-trial motions by demanding that all motions to be filed within the time frame set forth in the rule and will not permit any filings after that date even though there are valid reasons for the late filing.

So what does one do to protect one’s constitutional rights?

 
First, be sure you file a motion to extend the time for filing pre-trial motions and set forth the reasons for doing so.  Follow up to make sure the court rules on the motion and sets forth, with specificity, the time by which you must file your pre-trial motions.  Make sure your motion is spread on the docket as well as the court’s ruling.

 
Second, if the prosecutor has not provided all the discovery requested, file a Motion to Compel Discovery setting forth what you requested in your original discovery request and what was provided. Once again, make sure your motion is docketed as well as the court’s ruling.

Third, be cognizant of the time and mark your personal docket or calendar with “drop dead” date by which you must file your motions.
Finally, always “protect the record.”  If, for example, you are unable to file your motions even after the extension given by the court, file an appropriate pleading with the court setting forth, in detail, why.  Ask for an additional extension or other relief.

 
Invariably, courts who use this tactic probably will rule unfavorably on any pre-trial motion you will file.  So, as I said above, be sure all your motions are written with specificity, are docketed and that the court’s rulings on your motions are also on the court’s docket.  If the court has not ruled on your motion, take steps to mandate the court do so in order to have a complete record to forward to the court of appeals.