The court went on, "In determining whether counsel was "properly waived" in a prior case, there is a distinction made between "serious offenses" and "petty offenses." Criminal Rule 2 defines a "petty offense" as "a misdemeanor other than [a] serious offense" and a "serious offense" as "any felony, and any misdemeanor for which the penalty prescribed by law includes confinement for more than six months." Crim.R 2©, (D). After reviewing the requirements of Crim.R. 11 and 44, the Supreme Court of Ohio summarized the differing requirements for a valid waiver of the right to counsel in serious and petty offense cases as follows: "Waiver of counsel must be made on the record in open court, and in cases involving serious offenses where the penalty includes confinement for more than six months, the waiver must also be in writing and filed with the court." State v. Brooke, 113 Ohio St.3d 199, 2007 Ohio 1533, 863 N.E.2d 1024, paragraph two of the syllabus.

On appeal, the defendant intimated that her waiver of her right to counsel was invalid because she did not sign a written waiver and further asserts that there is no proof that her waiver was knowingly, intelligently, or voluntarily made.

The court countered by stating, “[The defendant] overlooks the fact that her 1995 OVI conviction was for a petty offense and did not require a written waiver. Moreover, as previously discussed, it is [the defendant's] burden to establish that her waiver of counsel was invalid. Therefore, [the defendant] had to demonstrate by a preponderance of the evidence that her waiver of counsel was not knowingly, intelligently, or voluntarily made before the burden shifted to the prosecution to rebut the evidence she presented.

The court concluded by stating, since there was no transcript of the 1995 plea, that the defendant failed to meet her burden in establishing that her plea was infirmed.

The second major issue addressed by the court was the defendant’s request that all her statements be suppressed for the state’s failure to Mirandize her prior to the statements being made.  The court began its discussion by summarizing the law relating to the defendants Miranda rights.  “In Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L. Ed. 2d 694 (1966), the United States Supreme Court held that the State may not use statements stemming from a defendant's custodial interrogation unless it demonstrates the use of procedural safeguards to secure the defendant's privilege against self-incrimination. Id. at 444. Police are not required to give Miranda warnings to every person that they question, even if the person being questioned is a suspect. State v. Biros, 78 Ohio St.3d 426, 440, 1997 Ohio 204, 678 N.E.2d 891 (1997). Instead, Miranda warnings are only required for custodial interrogations. Id.

The questions before the court was whether any of the statements made by the defendant were custodial in nature.  The court addressed this issue as follows: “The Supreme Court in Miranda defined "custodial interrogation" as "questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way." Id. at 444. In order to determine whether a person is in custody for purposes of receiving Miranda warnings, courts must first inquire into the circumstances surrounding the questioning and, second, given those circumstances, determine whether a reasonable person would have felt that he or she was not at liberty to terminate the interview and leave. Thompson v. Keohane, 516 U.S. 99, 112, 116 S.Ct. 457, 133 L. Ed. 2d 383 (1995). Once the factual circumstances surrounding the interrogation are reconstructed, the court must apply an objective test to resolve "the ultimate inquiry" of whether there was a "'formal arrest or restraint on freedom of movement' of the degree associated with a formal arrest." California v. Beheler, 463 U.S. 1121, 1125, 103 S.Ct. 3517, 77 L. Ed. 2d 1275 (1983) quoting Oregon v. Mathiason, 429 U.S. 492, 495, 97 S.Ct. 711, 50 L. Ed. 2d 714 (1977).

Based upon a review of the facts in the case, the court determined the following:
1.  The defendant initiated the conversation between herself and the officers.
2.  Any restraint was not initiated by the state but be the hospital for the purpose of administering to her injuries and
3.  The defendant raised no challenge to statements made by her at her home.

Therefore, the court concluded, the statements made were not custodial in nature and Miranda did not apply.  The appellate court sustained the findings of the lower court and sustained the admission of the statements.

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.