Many of my readers (in spite of my pleas to the contrary) enter court and attempt to resolve their OVI cases without benefit of counsel. The usual scenario consists of the first time offender pleading to one of the OVI charges, paying a fine, suffering a lengthy license suspension, and attending a 3-day diversion program.

But, because any OVI has a possible jail sentence of 6-months or more, the law mandates that any defendant be given their rights prior to the court accepting a plea. Criminal Rule 11(E) provides that “the court may refuse to accept a plea of guilty or no contest, and shall not accept such pleas without first informing the defendant of the effect of the plea of guilty, no contest, and not guilty.”

The provisions of Crim. R. 44(B) and (C) regarding counsel apply to division (E) of this rule. Crim. R. 44(B) governs the appointment of counsel in petty offenses: “Where a defendant charged with a petty offense is unable to obtain counsel, the court may assign counsel to represent him. When a defendant charged with a petty offense is unable to obtain counsel, no sentence of confinement may be imposed upon him, unless after being fully advised by the court, he knowingly, intelligently, and voluntarily waives assignment of counsel.” The rule goes on to say that the waiver must also be in writing and filed with the court.

A knowing, intelligent, and voluntary waiver of counsel is demonstrated through inquiry by the trial court that is sufficient “to determine whether defendant fully understands and intelligently relinquishes” representation. State v. Gibson, 45 Ohio St.2d 366, 345 N.E.2d 399.

Therefore, any defendant charged with an offense wherein a 6-month sentence, or more, can be imposed must be apprised of his constitutional rights, if not represented by counsel, including their right to an attorney, their right to confront witnesses against them, their right to subpoena witnesses on their behalf, the right to be tried by a jury or by the court, and their right to remain silent and requiring the state to prove its case beyond a reasonable doubt.

These rights must be outlined in open court on the record. His waiver of these rights must also be in writing and kept on file with the court. In fact, if the court fails to comply with the edicts of Criminal Rule 11(E) and 44(B) and (C), no plea to a subsequent OVI can be enhanced.

So, if you insist on representing yourself in court, be sure you are made aware of your constitutional rights, understand them, have them given to you in open court, in writing, and filed with the court.

In a recent blog I discussed the importance of remaining silent during on OVI investigation. A recent US Supreme Court provides another scenario that buttresses that advice.

The case, Kansas v. Ventris, involved the use of an informant to impeach the testimony of a defendant who denied involvement in a murder. Prior to trial, the police placed an informant in the same cell as the defendant instructing him to “keep [his] ears open and listen” for incriminating statements. According to the informant, the defendant admitted his involvement.

Ordinarily the use of an undisclosed informant used by the police to elicit incriminating statements is in violation of a defendant’s Sixth Amendment right to counsel and is subject to suppression.

The Ventris case carved an exception to that legal tenant. The exception is as follows: If the defendant takes the stand, the informant’s testimony, concededly elicited in violation of the Sixth Amendment, is admissible to challenge the defendant’s inconsistent testimony at trial. In other words, although a statement made by a defendant is ordinarily excluded due to a violation of the defendant’s right to counsel, the statement is admissible to impeach the defendant if the defendant takes the stand and makes a statement inconsistent with that made to the informant.

Applying this case to a typical OVI scenario, you have remained silent during the initial stop and you remained silent during subsequent road side interrogations, during the drive to the police station and during questioning at the station. You are placed in a jail cell with another individual who, in fact, was placed there to elicit incriminating evidence. You admit to him you were driving drunk. He tells the officers what you said. You take the stand and deny you were OVI. Under the Ventris case, the informant’s testimony is now admissible to impeach your testimony!

REMAIN SILENT.