The issue is what constitutes sufficient facts to warrant a stop.  Typical of these cases, is the “weaving” cases where the officer claims they observed the driver weaving back and forth or crossing the center line thus justifying the stop.

A recent Fifth Appellate District Court (Licking County) addressed the above issue.  In the case of State v. Houck, 2011 Ohio 6359, the officer testified he observed the defendant’s vehicle swerve. back and forth within its lane of travel. He testified at one point the vehicle crossed the yellow center line.

In its analysis, the court first reiterated the long standing rule that the officer need not observe an actual traffic violation but possess a reasonable suspicion that a violation is occurring.  The court went on to cite State v. Gullett (1992), 78 Ohio App.3d 138, 145, 604 N.E.2d 176, 180-181 which opined that “In Ohio, when a driver commits only a de minimis marked-lanes violation, there must be some other evidence to suggest impairment before an officer is justified in stopping the vehicle...the mere crossing of an edge line on two occasions did not constitutionally justify the stop.”  The court sent to say, “this court has held that where there is no evidence of erratic driving, other than what can be considered as insubstantial drifts across the lines, there is not sufficient evidence to justify an investigative stop. State v. Drogi (1994), 96 Ohio App.3d 466, 469, 645 N.E.2d 153, 155. However, as discussed above, under certain circumstances, an incident or incidents of crossing lines in the road may give a police officer reasonable suspicion to stop a vehicle, depending on those factors that indicate the severity and extent of such conduct. Id; State v. Johnson, 105 Ohio App.3d at 40, 663 N.E.2d at 677."

In review of the video introduced in the lower court the appellate court observed that it “...affirmatively demonstrates Appellee's vehicle did not appear to swerve back and forth and does not appear to drive left of center.”

The Fifth Appellate District Court concluded that a de minimus marked lanes violation without any further indication of erratic driving is fails to establish articulable suspicion upon which to base the initial stop.

If you have a question regarding a personal case, please send a direct email to me at afromet@roadrunner.com.

 
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.

 
A 49-year old man is being held without bail after authorities say he showed up for a court hearing on a felony DWI charge drunk and carrying an open can of Busch beer, plus four cans in a bag.
The Middletown Times Herald reports that Keith Gruber of Swan Lake was an hour and a half late for his court appearance Monday before Sullivan County Judge Frank LaBuda, who asked him if he enjoyed his “liquid lunch.”
Gruber said he did, then said he was sorry.
LaBuda sent him to jail with no bail.  Gruber, who had a prior DWI conviction, had been out of jail on a $30,000 bond.

The facts are as follows: In July of 2008, the defendant was involved in an accident wherein he was driving a truck that struck and injured a pedestrian. The Defendant was subsequently charged with four misdemeanor charges, OVI, driving with a prohibited level of drugs in the system (“Per Se”), Failure to Control and Reckless Driving.

The Defendant filed a motion to suppress based upon the fact that the officers failed to have probable cause to arrest. The Defendant also filed a motion to dismiss under Ohio’s speedy trial statute. The court dismisses the pre se violation due to the state’s failure to bring the Defendant to trial within the statutory period. The state then asked the court to dismiss the remaining charges.

Some months later the state indicted the Defendant on the charges of vehicular assault and driving under the influence. The Defendant filed a motion to dismiss the indictment, asserting the violation of his statutory speedy trial rights in the second case required the indictment be dismissed pursuant to R.C. 2945.73(D). According to defendant, the municipal court’s decision dismissing the per se violation barred prosecuting defendant for any offenses arising out of the events of the automobile accident.

The common pleas court granted the Defendant’s motion as to the OVI charges and denied the motion relating to the vehicular assault charge. The state appealed. The state asserted in its appeal that because the municipal court dismissed the per se case at the state’s request, and not because of a statutory speedy trial violation, those charges were not “discharged.” Relying on State v. Flowers, 2d Dist. No. 22751, 2009 Ohio 1945, the state contended R.C. 2945.73(D) required discharge from all criminal liability in order to bar further criminal proceedings based on the same conduct. The court was not persuaded by saying, “Nowhere does Flowers define “discharge” in R.C. 2945.73(D) to mean discharge from all criminal liability rather than discharge of any single pending charge based on the same conduct.”

Defendant, on the other hand, focused on the meaning of “based on the same conduct” in R.C. 2945.73(D). Because the municipal court “discharged” the per se violation against defendant for a violation of R.C. 2945.71, Defendant asserts R.C. 2945.73(D) bars prosecuting Defendant based on the events and circumstances of the automobile accident, regardless of the state’s voluntary dismissal of the charges in the per se case.

In its opinion, the court said, “Defendant correctly contends that since the charges in the second case and in the subsequent felony indictment arose from the same automobile accident, the interpretation and meaning of “based on the same conduct” in R.C. 2945.73(D) determines whether, or to what extent, the state is able to pursue any future charges against defendant premised on the … automobile accident.”

The court added, “ In State v. Smith (June 22, 1978), 10th Dist. No. 77AP-960, 1978 Ohio App. LEXIS 10715 this court explained “[t]he word ‘conduct’ as used in R.C. 2945.73(D) is broader than merely that relating to the essential elements of the charge involved and includes the surrounding circumstances and evidence which would naturally be introduced in support of the charge… The [common pleas] court properly interpreted the phrase “based on the same conduct” from R.C. 2945.73(D) to refer to the conduct underlying the charged offenses rather than the specific elements of the offenses…Because the parties do not dispute defendant was involved in only one automobile accident …, the common pleas court properly concluded on the facts present here that all of the charges stem from the same conduct, a conclusion that caused it correctly to invoke the R.C. 2945.73(D) bar to further prosecution for offenses based on the same conduct.”

What can be drawn from this case? When a court reviews a decision based upon R.C. 2945.73(D), “based upon the same conduct” means the totality of the events giving rise to the action NOT the elements of the crime itself.