Ohio Dui - Cleveland Attorney Avery H. Fromet

The Importance of Pleading No-Contest

afromet — Wed, 18 Jan 2012 14:09:35 +0000

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.

Probable Cause to Arrest for OVI May Be Predicated on Other than Field Sobriety Tests

afromet — Thu, 05 Jan 2012 16:50:46 +0000

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.

Enhancement and the Right to Counsel

afromet — Tue, 20 Dec 2011 14:38:04 +0000

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.”

Probable Cause to Stop and “Crossing the Yellow Line”

afromet — Wed, 14 Dec 2011 14:01:01 +0000

Readers of this blog are aware of my discussions of Probable Cause to stop.  As discussed, an officer need not have probable cause to stop a vehicle but must posses a “reasonable suspicion” that a traffic violation is occurring.  As established by a number of courts, “...an officer does not need probable cause to make a traffic stop; reasonable suspicion based on specific and articulable facts that a traffic law is being violated or that criminal activity is occurring is sufficient to meet constitutional requirements,” In re Eric W., Alleged Delinquent Child (1996), 113 Ohio App.3d 367, 369-370, 680 N.E.2d 1275, 1276, citing State v. Wireman (1993), 86 Ohio App.3d 451, 453, 621 N.E.2d 542, 543-544; see, also, Delaware v. Prouse (1979), 440 U.S. 648, 663, 99 S.Ct. 1391, 1401, 59 L.Ed.2d 660, 673-674.

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.

OVI Conviction May Affect Child Custody

afromet — Thu, 08 Dec 2011 14:22:32 +0000

Past blogs have identified areas of concern resulting from an OVI conviction. As discussed, an OVI conviction not only has severe penalties, but can materially affect employment, insurance, and professional licenses.

A recent court of appeals case points to another possible consequence of multiple OVI convictions - child custody. In the case of Oberlin v. Oberlin, 2011 Ohio 6245, the Ninth Appellant District (Summit County) affirmed a lower court’s decision to reallocate parental rights and custody resulting from multiple OVI convictions.

Before rendering its decision, the lower court referred the child custody issue to a Family Court Services Evaluator who prepared a report with an initial custody determination and ultimately recommended that Father be awarded custody. The trial court noted in the divorce decree that evaluator felt the case was "a close call" and recommended the wife seek custody in the event there are any further alcohol-related issued. Subsequently, the husband was convicted of a second OVI and the wife filed a motion in court for a reallocation of parental rights asking that the wife be made the custodial parent. The lower court granted her motion and conveyed custody of the child to the mother. The husband appealed.

The appellate court’s opinion began by citing O.R.C. 3109.04(E)(1)(a) which states, “ [A] court shall not modify a prior decree allocating parental rights and responsibilities for the care of children unless it finds, based on facts that have arisen since the prior decree or that were unknown to the court at the time of the prior decree, that a change has occurred in the circumstances of the child, the child's residential parent, or either of the parents subject to a shared parenting decree, and that the modification is necessary to serve the best interest of the child."

The court continued, “As such, ‘before a modification can be made pursuant to R.C. 3109.04(E)(1)(a), the trial court must make a threshold determination that a change in circumstances has occurred.’ Buttolph v. Buttolph, 9th Dist. No. 09CA0003, 2009 Ohio 6909, at ¶11. Moreover, the requisite change of circumstances ‘must be a change of substance, not a slight or inconsequential change.’ Davis, 77 Ohio St.3d at 418. The statute is intentionally designed to require a significant change in order ‘to spare children from a constant tug of war between their parents who would file a motion for change of custody each time the parent out of custody thought he or she could provide the child a 'better' environment.’ Id., quoting Wyss v. Wyss (1982), 3 Ohio App.3d 412, 416.

The father argued that an OVI conviction, by itself, cannot constitute a change in circumstances. The Ninth Appellate District disagreed.

The court pointed to the testimony of the Family Court Services Evaluator who testified that her report included the recommendation that the wife should seek custody of the child if there were any further alcohol-related offenses. The appellate court agreed that the second OVI conviction constituted a change of circumstances and affirmed the lower court’s decision to reallocate custody to the wife.

I would be remiss if I failed to report that the court did review other factors such as the husband’s working hours in determining custody. But the OVI conviction constituted nearly 75% of the court’s opinion. So, one can only conclude that the conviction was a major issue in the court’s decision.

Also a major factor in the court’s decision was the Family Court Services Evaluator’s report which warned the husband of the consequences of any additional alcohol-related incidents. Would the court’s decision been different if the warning was not present in the report? This question is open to speculation.

But, the Ninth Appellate District Court has made it clear that OVI convictions and alcohol-related issues will be a determining factor in custody issues.

Probable Cause to Arrest for Underage Drinking

afromet — Sat, 26 Nov 2011 16:48:49 +0000

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.

The Burden of Showing Substantial Compliance

afromet — Wed, 26 Oct 2011 01:09:24 +0000

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.

The Affect of an OVI Conviction on Out-of-State Licences

afromet — Wed, 19 Oct 2011 13:28:05 +0000

Many readers have asked me the consequence of an OVI conviction on their out-of-state drivers licenses. Whether an Ohio driver or a person convicted in Ohio from another state, the “interstate compact” has an impact on your driving privileges in your native state. Only four states, Georgia, Massachusetts, Michigan, Wisconsin, and Tennessee, do not belong to the compact.

Basically, the compact requires all states to report any OVI/DUI conviction to all members of the compact. Upon receipt, that state will communicate the fact to the licensee and sanction them as if convicted in that state.

For example, lets assume you are convicted in Texas for OVI and that conviction is communicated to the Ohio BMV. Pursuant to the compact the Ohio BMV will notify the offender and sanction them as if the conviction occurred in Ohio. For a first offender, their license would be suspended for a minimum period of six months, etc. Of course, they do have the right to an appeal as prescribed by the notice and should be undertaken in order to obtain limited driving privileges as prescribed by law. Remember if you file your appeal late, you risk losing ANY driving privileges in Ohio for a minimum of six months!

Now, the obvious question - How sure am I that the conviction will be reported? This, of course, depends upon the administrative capabilities of the states’ BMVs. Some states are notoriously lax in their reporting. Ohio, for example, has the reputation of being very hit and miss.

If you possess an out-of-state license, I strongly recommend you contact an OVI specialist in your state to advise you of the consequences of any conviction in Ohio before entering any plea. If you are an Ohio licensee, contact an Ohio OVI attorney before pleading in the state you are charged.

The “Senior Operator”

afromet — Wed, 21 Sep 2011 15:31:41 +0000

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.

Specificity in Court Ordered Limited Driving Privileges

afromet — Tue, 13 Sep 2011 15:05:32 +0000

Ohio’s statutes are replete with driving limitations for violations of 4511.19 (DUI/OMVI), driving under suspension violations, certain drug convictions under Ohio’s criminal statute, Title 29, and other miscellaneous statutory violations. Some limitations are greater than others, some statutes calling for an absolute ban on any privileges for a period of time, others granting limited privileges based upon factors such as prior violations of the same statute.

But, issues can arise regarding a court’s description of those privileges. R.C. 4510.021(A) requires a court, when granting limited driving privileges, to "specify the purposes, times, and places of the privileges...”

An issue relating to this statute arose in Warren County (12th Appellate District). The case, State v. Butler, 2011 Ohio 4565, involved a defendant’s violation of Ohio drug law. The defendant incurred a three year suspension of his driving privileges. After the three year suspension expired, the defendant made his application for limited privileges. The lower court granted privileges permitting the defendant to drive between 6:00 a.m. and 7:00 p.m., Monday through Saturday. The entry further prohibited the defendant from consuming alcohol while driving or in the 12 hours preceding his driving, and from operating a vehicle while under the influence of any drug of abuse.

The state appealed claiming the court failed to comply with R.C. 4510.021(A) as it failed to specify the purpose, times and places of the privileges. The appellate court agreed with the state and remanded the case back to the lower court for further proceedings to correct the entry.

Therefore, it is vitally important that the court properly comply with the statute to save everyone time and expense. To properly comply the entry should:

1. State the times and days the applicant may drive, and
2. State the purpose or purposes for which the privileges are being granted, and
3. State where the applicant may drive.

A typical entry by most court’s may read as follows: “The defendant may drive between the hours of _____ am to ____pm for work, medical, and religious purposes and to comply with court and probation orders and  appearances.”  Is this specific enough to comply with R.C. 4510.021(A)?  Only time and jurisprudence will tell.