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Ohio DUI/ Ohio OVI Appellate Decisions

10-29-07: Ohio DUI Law Criminalizing “Refusal” Unconstitutional -- Ohio DUI statute that criminalizes a “refusal” is unconstitutional. (State v. Hoover, Union County Court of Appeals).

08-16-07: Ohio Possession of Cocaine (F5) -- the defendant was sentenced to 12 months in prison for possessing less than 5 grams of cocaine after a jury returned a guilty verdict.  The defendant appealed arguing that "mere possession of a crack pipe does not demonstrate he knew drugs were present".  The residue in the pipe was analyzed by using "Scott's Test" (rinsing the socket with methylene chloride and testing for drugs) and gas chromatograph mass spectrometer ("GC Mass Spec").  Both tests concluded the presence of cocaine residue.  The quantity of drug is not a factor in determining guilt or innocence.  The amount of cocaine was so small the only way to remove it was by rinsing still supported a conviction for possession of cocaine under Ohio's Drug Possession statute.  (State v. Young, Cuyahoga County Court of Appeals).

08-06-07: LEADS Report -- this is admissible hearsay under Evid.R. 803(8)(a).  It contains only the routine activities of a public agency relative to the ownership of a vehicle.  The State may offer it in a criminal case.  It stil has to be authenticated under Evid.R. 901 -- testimony by a witness that it is what it purports to be and it is from a public office where items of such nature are kept.  NOTE: there is a split of opinion in the Ohio appellate courts on the admissibility of LEADS reports.  (State v. Papusha, Preble County Court of Appeals)

08-06-07: Possesion of Cocaine in Ohio -- "knowingly posses" -- a person acts "knowingly", regardless of his purpose, when he is aware that his conduct will probably cause a certain result. "Knowingly" can be determined from all the surrounding facts and circumstances.  It is an issue for the judge or jury to decide.  (State v. Frazier, Stark County Court of Appeals).

07-13-07: Ohio Aggravated Vehicular Homicide ("AVH")-- it was lawful for the Court to impose consecutive sentencing on the Defendant for violating both the DUI specification and the reckless specification for AVH.   Therefore, the Defendant was sentenced twice for the same conduct by finding that one need not be reckless to be DUI and one need not be DUI to be reckless.  Two separate elements in the same statute.  (State v. Hundley, Hamilton County Court of Appeals)

07-13-07: Ohio Felonious  Assault - a defendant is not entitled to an instruction on a Lesser Included Offense unless the totality of the evidence does not support an acquittal on the greater offense and a conviction on the lesser offense.  (State v. Burks, Lucas County Ohio Court of Appeals)

07-08-07: Ohio Prosecutor Misconduct Leads to Reversal of Conviction -- when the defendant testified at trial and stated, "I am going to take the Fifth", it was reversible error for the prosecutor to then say, "Once again, you don't want the jury to hear the truth. Is that what you are saying?" (State v. Beebe, Hocking County Ohio Court of Appeals).

06-18-07: United States Supreme Court --  When a car is pulled over by a police officer, passengers are considered "seized" within the meaning of the fourth amendment.  The Court held 9-0 that the right to challenge the constitutionality of a traffic stop extends to the passengers of the vehicle in question.  The Court concluded that no reasonable passenger in a traffic stop would believe that they are free to "terminate the encounter" with the officer, thus rendering passengers 'seized' in the same way that the driver is in a traffic stop for purposes of the Fourth Amendment.  Brendlin v. California

06-08-07: FELONY OHIO DUI  CONVICTION REVERSED -- the Fulton County Court of Appeals (6th Appellate District) reversed a felony conviction after the State failed to sufficiently prove the prior DUI convictions.  When a prior offense increases the degree of the offense, the prosecution must establish the prior conviction beyond a reasonable doubt.  R.C. 2945.75(B) permits the state to meet this burden by admitting into evidence a "certified copy of the entry of judgment in such prior conviction" along with evidence that the defendant in the prior case(s) is the same individual.  If the state seeks to introduce a judgment of conviction, the judgment itself must not be defective.  Judgments must conform to Crim.R. 32(C) which requires (a) the plea (b) the verdict or finding (c) the sentence (d) it must be signed by the judge; and (e) the clerk of courts must journalize it.  At issue in this case is the fact that the prior judgment of conviction actually lacks a finding of guilt.  Conviction reversed.  (State v. Hill and Whitten.  The defendants were represented by Amber L. VanGunten).

06-05-07: RECKLESS HOMICIDE CONVICTION REVERSED -  the Franklin County (Ohio) Court of Appeals, 10th Appellate District, overturned a reckless homicide conviction based upon insufficient evidence to convict.  A person acts recklessly when he "perversely disregards a known risk that his conduct is likely to cause a certain result".  The knowledge of a specific risk (as opposed to a general risk inherent in the activity) must be proven by the prosecution.  The state failed to present evidence that the defendant knew of the specific risk associated with an activity.  Essentially, knowledge of a general risk may be grounds for a negligence crime whereas knowledge of a specific risk is the basis for a reckless crime. (State v. Peck).

06-04-07: Scientific Testimony in Urine Test Ohio DUI Case Disregarded by Court-- the Knox County (Ohio) Court of Appeals, 5th District, affirmed the lower court's decision to disregard the unrebutted scientific testimony of the defendant's expert.  Specifically, the defendant gave a urine sample after being arrested for Ohio DUI / Ohio OVI.  His results were over Ohio's urine legal limit.  His attorney, Jim Gilies, hired Dr. Alfred Staubus, a pre-eminent toxicologist, to testify as to the inherent unreliability of urine sampling for alcohol levels.  The trial judge heard all of the testimony at bench trial with very little rebuttal from the prosecutor.  The trial judge concluded that since Ohio's Alcohol Testing Regulations are silent on the issues presented by Dr. Staubus (i.e. a bladder void before an evidentiary sample) that there is no Ohio requirement for a bladder void.   The trial judge then found the defendant guity of having an illegal concentration of alcohol in his urine ("per se" violation) and sentenced him accordingly.  The defendant appealed.  The 5th District (Ohio) Court of Appeals affirmed in a very short decision.  (State v. Watson, Knox County Court of Appeals, 5th District).

05-29-07: HGN in Ohio DUI - Failure of An Officer to Determine a 45 Degree Angle -- an officer must tell the court how he or she specifically determined 45 degree angle (for onset prior to 45 degrees) for the HGN to be admissible. There are only 3 ways to determine 45 degree angle: (1) use of a template; (2) position the stimulus a specific distance from the suspect's face and moving it that same distance from side to side; and, (3) by gauging the angle in respect to the suspect's shoulder.  State of Ohio vs. Haneberg (Medina Court of Appeals)

04-18-07: Ohio Supreme Court Tightens Burden of Proof in Multiple Offender DUI Cases -- Prior Uncounselled Convictions --  when a defendant charged with Ohio DUI / Ohio OVI and has prior DUI convictions, a typical defense theory is to challenge the constitutionality of those priors.  The most common challenge to prior DUI convictions in Ohio is "prior uncounselled" challenges. When an Ohio DUI defendant makes a prima facie showing (i.e. signs and files an Affidavit stating as much)  that one or more of his or her prior DUI convictions was without legal counsel and resulted in incarceration (an important distinction), the burden shifts to the State to prove that the defendant properly waived the right to counsel in the earlier cases before any prior conviction can be used to enhance the penalties for the new Ohio DUI offense. Specifically, waivers of legal counsel in Ohio criminal / Ohio DUI cases must be made on the record and in open court.  If the prior Ohio DUI was a third offense or higher (carrying more than 6 months incarceration), the Ohio Supreme Court ruled that the waiver of counsel must be made in writing and filed with the court.  It appears as though Ohio prosecutors must need to introduce a transcript of the prior sentencing hearings in order to show compliance with Ohio Criminal Rules 11 (trial judge must address the defendant personally and inform him or her of the effects of a plea and then make a determination that the defendant is entering the plea voluntarily.  A trial judge must also re-advise the defendant of his or her right to legal counsel and then be satisfied of the waiver of that right).   Waiver of legal counsel must meet Ohio Criminal Rule 44(C) (in open court, and recorded. It must be in writing if the defendant is facing more than 6 months incarceration). (State v. Brooke, 113 Ohio St.3d 199, on appeal from the Lake County Court of Appeals).

04-09-07: 12th District Guts Ohio DUI Defendant's Right to Challenge Chemical Testing -- the Warren County Court of Appeals (12th District) issued a very naive and illogical decision when it ruled that a defendant's motion to suppress a breath test contained no "supporting factual basis specific to this case".  This triggered only a "slight burden" on the State to prove ODH compliance.  What is absolutely incredible about this Court's decision is that offers a practice tip for defense attorneys (i.e. "the best method for obtaining a specific factual basis to form specific challenges to a DUI breath test is for the accused to conduct formal discovery prior to filing the motion to suppress").  Not only is this naive, it certainly lacks a practical application of how an Ohio DUI attorney is to conduct "formal discovery" when no such right exists in the Rules of Criminal Procedure.  Depositions, Interrogatories, and Request for Production of Documents are creatures of Civil Procedure, not Criminal Procedure.  If the court is suggesting "Informal Discovery", most competent Ohio DUI defense attorneys already do that. However, visiting a state patrol post and reviewing breath testing records only gets us so far. We need live courtroom testimony in order to determine if 100% of the breath testing regulations were complied with.  (State v. Jimenez, Warren App. CA2006-01-005)

03-26-07: Anonymous Tip Leading to Ohio DUI Stop Upheld --  the state must demonstrate at a pre-trial hearing that the facts precipitating the tip justified the traffic stop when law enforcement does not observe any evidence of a traffic violation or criminal offense.  An identified citizen tipster is deemed the most reliable of tips to 800-GRAB-DUI.  When another driver calls into 800-GRAB-DUI and provides their name, phone number and is present during the traffic stop, this possesses sufficient reliability for an officer to make a stop with no other evidence.  (State v. Mangus, on appeal from a DUI in Delaware County Ohio).

03-23-07: Improper Backing Statute Does Not Apply to Backing Out of Private Drive -- R.C. 4511.38 is not applicable to backing situations arising on private property and a defendant cannot be convicted of violating this statute. ( State v. Hill, 5th District, citing State v. Buell, 12th District)

03-14-07: State Must Prove at Hearing What Radio is Used to Test for RFI -- when challenged by the defense in a pre-trial motion to suppress, the State must prove that the radio used in the RFI check is one "normally used" by that law enforcement agency.  ( State v. Graziano, Licking County Ohio DUI appeal.  Mr. Graziano was represented by Columbus lawyer Eric Yavitch).

03-14-07: Ohio DUI Breath Testing Records Must Be Prepared Without Regard to a Specific Prosecution to Meet the Business Record Exception -- the 5th District concluded that breath testing records kept administratively, and not for a specific prosecution, are not testimonial.  The Court left the door open as to documents prepared by the prosecutor's office or law enforcement specific to a case.  (State v. Graziano, Licking County Ohio DUI case)

02-06-07: Obstruction of Official Business in Columbus Ohio Conviction Reversed -- The 10th District Court of Appeals reversed this conviction as a result of no evidence that the defendant in such a manner with the purpose to prevent, obstruct, or delay the performance of an official duty.  The defendant merely yelled loudly at the officers in an angry and aggressive manner.  The fact it delayed the officers did not rise to the level that the defendant's purpose was to delay.  (State v. Ivers, on appeal from the Franklin County Municipal Court)

01/29/07: Blood Testing Requires Swab to be Non-Alcohol Based - the 12th District Court of Appeals issued an extremely rare Ohio DUI / Ohio OVI decision for the defense when it affirmed the lower court's ruling suppressing results of the defendant's blood test.  R.C. 4511.19(D)(1) details the threshold criteria for admissibility of alcohol-test results in Ohio DUI cases.  Blood samples must be analyzed in accordance with Ohio's chemical testing regulations.  The regulations specifically state that skin antiseptic must be alcohol free.  The fact an alcohol antiseptic was used requires suppression of the blood sample in the Ohio DUI charge.  (State v. White, on appeal from Butler County Court of Common Pleas)

01-02-07: 5th District Reverses Ohio DUI (urinalysis) Conviction - Failure to Refrigerate Sample - The defendant's urine sample was not refrigerated for 17 hours (time of collection to time of mailing).  The Court of Appeals cited State v. Mayl and concluded that a 17 hour deviation from ODH regulations is not substantial compliance.  (State v. DeJohn, on appeal from Fairfield County Court of Appeals, defendant represented by Attorney Scott Wood)

12-29-06: Expungement Reversed by 10th District -- the trial court granted defendant's expungement of possession of criminal tools and forgery which occurred over a 3 month time period.  The trial court concluded that defendant's conduct merged into a single offense.  The Court of Appeals reversed concluding that the convictions were based upon separate and distinct acts that occurred on different days thus they do not merge into a single offense for expungement purposes.  (State v. Brewer)

12-29-06: Expungement Reversed - Case Involved Material Harmful to Juveniles - the Franklin County Court of Appeals reversed a defendant's expungement since his conviction of disseminating matter harmful to juveniles.  The court found this to be a crime involving a juvenile thus non-expungeable.  (State v. Menzie)

12-28-06: Ohio DUI Conviction Reversed Based Upon Illegal Continued Detention of Motorist -- the defendant was stopped by police for "fictitious license plate".  However, the officer quickly determined he mis-read the car's license plate.  Once the officer learned this, he was not permitted to detain the motorist any longer as he did not have any other independent evidence that the motorist was committing any other crime.  (State v. Cromes, on appeal from the Shelby County Municipal Court) 

12-20-06: OHIO SUPREME COURT DECIDES SPEEDY TRIAL CASE - for purposes of calculating "speedy trial" time pursuant to R.C. 2945.71(C), a charge is not pending until the accused has been formally charged by a criminal complaint or indictment, is held pending the filing of charges, or is released on bail or recognizance".  A mere arrest does not trigger the speedy trial clock.  An arrest can rise to the level of triggering the speedy trial clock if it (the arrest) is the beginning of the continuing restraints on the defendant's liberty imposed in connection with the formal charge on which the defendant is formally charged.  (State v. Azbell, Justice Lundberg Stratton)

12-19-06: 7th District Reverses Ohio DUI Conviction - Unreasonably Prolonged Detention -- the defendant was stopped for an illegal window tint.  There was no evidence of impairment, just a "slight" odor of alcohol and an admission to conuming "2 beers earlier".  The request to do field sobriety tests was not based upon sufficient evidence of impairment.  (State v. Reed, on appeal from Belmont County)

12-19-06: Ohio Aggravated Vehicular Homicide Blood Sample Destroyed -- before a trial court can find "bad faith" and dismiss a criminal complaint, an evidentiary hearing must be held.  Failure to hold a hearing is reversible error.  State v. Thompson, on appeal from the Licking County Court of Common Pleas)

12-18-06: Ohio Aggravated Vehicular Homicide - Ohio DUI - 5 Year Prison Sentence Affirmed -- the defendant was convicted of aggravated vehicular homicide after a vehicle accident resulting in the death of his brother and his brother's girlfriend.  The defendant was sentenced to 5 years in prison.  The 9th District Court of Appeals reviewed the trial transcript and determined that (1) there was sufficient evidence to find that the defendant was, in fact, the driver; (2) the interview the defendant gave the police did not violated the Right of Confrontation; and, (3) the Court's sentence was within its discretion and met " Foster"  requirements.  (State v. Keene, 9th Dist., from the Lorain County Court of Common Pleas)

12-15-06: Overbroad Probation Conditions - Forfeiture of Guns - the defendant's probation was violated when he was arrested on new charges. One of the probation violations was that he was ordered not to possess, consume, or be in a place that serves alcohol.  The 2d District Court of Appeals agreed with the defendant that this probation condition was overbroad and that the court abused its discretion in ordering these prohibitions.  There was no evidence that the defendant had a problem with alcohol or that alcohol played any role in his underlying crime.  Also, the Court of Appeals concluded that the forfeiture of all defendant's guns was reversible error.  Only the shotgun used in the commission of the crime was subject to forfeiture, not the other guns legally owned by the defendant.  (State v. Keggan, 2d Dist., appeal from Fairborn Municipal Court)

12-15-06: Ohio DUI Charges Dismissed - Officer Erased Arrest Video - the court found "bad faith" with the officer's actions in erasing the defendant's arrest video. Case dismissed at trial court level. Affirmed on appeal. (State v. Battease, Hamilton County, 1st District) 

12-08-06: Ohio DUI Conviction Reversed - Motion to Vacate Guilty Plea - the defendant pled guilty without a lawyer. After sentencing, the defendant hired a lawyer who immediately filed a Motion to Vacate the Guilty Plea.  The trial court denied the Motion without a hearing.  The 2d District reversed and remanded the case because the trial court failed to advise the defendant of a mandatory license suspension as well as several other statutory consequences of entering a plea.  (State v. Neff, 2d Dist., appealed from Clark County Municipal Court) 

12-08-06: Ohio DUI Field Sobriety Tests Standards - NHTSA guidelines submitted into evidence were silent as to whether a motorist has to be standing for the HGN test. The walk-and-turn test  and one-legged stand instructions were not administered in substantial compliance of NHTSA guidelines.  However, the officer could still testify as to his observations during these exercises.  (State v. Mendoza, Appeal from Perrysburg Municipal Court)  

12-07-06: Ohio DUI Jury Trial - Judge's questions of trooper - a trial court judge can ask questions of witnesses provided the questions are not with any improper purpose or partiality.  Also, the trial court did not err when it refused to permit the defense to question the trooper about the accuracy and reliability of field sobriety tests.  (State v. Dunn, Pickaway Co.)

12-07-06: Ohio DUI - Vicodin & Alcohol -- it is proper to allow the State's criminalist to testify about the warning label on a prescription bottle of Vicodin.  The prosecutor was permitted to introduce the defendant's prescription bottle.  The warning label was not hearsay according to the 5th District Court of Appeals.  The criminalist was also permitted to testify about the dangers of mixing alcohol and Vicodin. (State v. Taylor, appeal from Ashland Municipal Court) 

11-30-06: Improper Probation Condition - the trial court imposed a probation condition of an alcohol assessment and random urine screens despite the fact his conviction for domestic violence did not involve alcohol or drugs.  The Hamilton County Court of Appeals reversed the trial judge's decision to impose these probationary conditions.  Apparently, this assessment was urged by the defendant's wife.  (State v. Voelker)

11-17-06: Ohio DUI Speedy Trial Violation - defendant charged for Ohio DUI / Ohio OVI and waived his right to speedy trial.  This charge was dismissed.  The defendant was subsequently re-charged with Ohio DUI / Ohio OVI under a separate sub-section (R.C. 4511.19(A)(6)).  He did not waive his right to speedy trial on this charge.  Because the charges all arose from the same set of circumstances, the State failed to bring the second Ohio DUI charges within 90 days of defendant's arrest.  (State v. Kristofferson, Hamilton Co.)

11-13-06: Ohio Vehicular Assault / Obstruction of Official Business - the defendant was part of a 2 car drag race when the other driver crashed into a hotel and seriously injured two hotel guests.  The defendant's conviction for Obstruction was reversed based upon a lack of evidence to support this charge.  His sentence on the vehicular assault conviction was upheld.  (State v. Moony, Stark Co.)

11-08-06: Ohio Vehicular Homicide - defendant failed to yield the right of way as he entered an intersection resulting in the tragic death of a 9 year old girl in the other vehicle. No drugs, alcohol, or reckless driving was alleged. Following a jury trial, the defendant was convicted and received 30 days in jail.  The court off appeals did not find the sentence to be "punishment" for taking his case to trial.  Other evidentiary issues included prosecutorial misconduct during closing arguments, testimony about skid marks and trial counsel's failure to object were found to be without merit. (State v. Yonis, Perry County)

11-03-06: Failure to Prove Prior DUI Convictions - Crim.R. 32(C) requires journalizing of criminal convictions and the State failed to meet the requirements of Crim.R. 32(C) which states in pertinent part, "a judge shall sign the judgment and the clerk shall enter it on the journal.  A judgment is effective only when entered on the journal by the clerk". (State v. Finney, Fulton Co.)

11-02-06: Officer's Notes - in camera inspection - defendant was convicted of drug trafficking in Cuyahoga County Court of Common Pleas.  Defense counsel requested that the officer's investigative notes be reviewed by the judge, in camera, and preserved in the record for appeal. Under Ohio Crim.R. 16, a defendant is entitled to have the judge inspect the prior written notes if it is requested after the direct examination of the witness, but before completion of cross-examination.  The trial judge refused to grant an in camera inspection of the officer's notes and defense counsel's request to preserve the notes for appellate review. Reversed and remanded.  (State v. Spraggins, Cuyahoga County)

10-30-06: Public Safety Exception for Warrantless Entry into home - defendant was involved in a head-on collision with a parked SUV and drove home.  Police entered defendant's home after knocking.  Police thought the defendant might be injured so they used the "public safety" exception to enter the home.  The appellate court found exigent circumstances permitted the officers to enter. (State v. Rinard, Wayne County)

10-23-06: Ohio Aggravated vehicular homicide - sentencing factors - defendant entered a guilty plea to aggravated vehicular homicide resulting from an Ohio DUI arrest. He was sentenced to 5 years in prison.  He argued on appeal that the trial court did not make a proper record before sentencing him to more than the minimum (2 years in prison).  The trial court did not refer, at all, to R.C. 2929.14(B) before sentencing him to more than the minimum.  Somehow, his sentence was affirmed in a true head scratcher. (State v. Rice, 12th Dist.  Defendant was represented by Warren County Ohio lawyer Thomas Eagle)

10-23-06: Ohio DUI - breath testing - defense expert not permitted to testify - defendant was arrested for DUI in Ohio and tested, by breath, over Ohio's legal limit.  The defendant retained an expert witness to testify about the testing procedures recommended by the scientific community, biological variability, and the lack of dual testing.  The trial court did not permit this testimony.  The Marion Court of Appeals affirmed.  (State v. Columber, 3rd Dist.)

10-18-06: Ohio DUI Laws - Breath Test Regulations - state is required to prove the location of the manufacturer's operations manual for BAC DataMaster; the retention of testing records for 3 years; and proof that alveolar air was tested. The court concluded that the state had demonstrated sufficient compliance of Ohio DUI laws and breath testing regulations. (State v. Wetherill, 5th Dist., Tuscarawas County)

10-18-06: Vehicle Search - absence of written policies for inventory search - court found sufficient testimony to support to support the inventory search even in the absence of written guidelines.  (State v. Bennett, 5th Dist. Defendant was represented by Columbus Ohio lawyer Shawn Dominy)

10-16-06: Ohio DUI - Ohio Felony DUI - defendant was indicted on Ohio Felony DUI / Ohio OVI based upon 5 prior Ohio DUI / Ohio OVI convictions in the past 20 years.  Proof of prior Ohio DUI arrests and Ohio DUI convictions - the court of appeals held that the State presented sufficient evidence to prove that the defendant was, in fact, the same defendant previously convicted of 5 previous Ohio DUI / Ohio OVI.   However, the sentence was reversed and remanded since the defendant was sentenced under the statutory framework subsequently found unconstitutional in State v. Foster. (State v. Bolish

10-10-06: Lack fo Probable Cause to Arrest for Ohio DUI reversed by Franklin County Court of Appeals - trial judge concluded that the Ohio State trooper did not have probable cause to arrest for Ohio DUI.  Court of appeals reversed. (State v. Morgan, 10th Dist.)

10-06-06: Ohio Breath testing records are not barred by Crawford - defendant was charged with DUI in Ohio. Ohio DUI laws permit documents offered into evidence regarding certification of the Ohio breath testing machine were not testimonial under Crawford v. Washington. (State v. Shisler, 1st Dist.) Defendant was represented by Ohio DUI lawyer Rob Lyons. 

10-02-06: Ohio speed detection - laser - in order to convict defendant of speeding in Ohio using laser, the state must introduce evidence that laser is scientifically reliable.  However, the trial court may take judicial notice of reliability.  Also, there must be testimony that the laser was in good condition for accurate readings and that the officer is qualified to operate the device.  (State v. Palmer, 1st Dist.)

09-29-06: Defective Motion to Suppress in Ohio DUI case- Ohio DUI lawyer failed to state with specificity the basis for his challenge to the admissibility of field sobriety tests. (State v. Arnold, 7th Dist.)

09-29-06: Restitution in Ohio Criminal case - trial court improperly speculated amount of restitution.  (State v. Castaneda, 5th Dist.)

09-22-06: House-Arrest / Electronic Monitoring -- the trial court failed to make a proper record before sentencing the defendant to the alternative DUI sentencing provision under O.R.C. 451119(A)(1)d) (State v. Beatty, 1st Dist.)

09-22-06: Field Sobriety Tests suppressed - prosecution failed to establish NHTSA FST standards by either the NHTSA training manual or some other means. Field sobriety tests were properly suppressed.  (State v. Mook, 11th Dist.)

09-15-06: "Divided Attention Skills Tests" -- trial court correctly sustained defendant's objection to the use of this phrase since no testimony at trial had been adduced that the roadside "tests" were, in fact, "skills tests".  (State v. Albanese)

09-08-06: 5 years of electronically monitored house arrest is permissible under Ohio's misdemeanor sentencing laws since it is a form of community control (State v. Anderson)

09-12-06: Intervention in Lieu of Conviction (ILC) - defendant violated ILC terms and sentenced to 11 months in prison. PSI is not required for imposing prison, but is mandatory prior to being placed on community control. (State v. White, Morgan County, 5th D.)

07-26-06: Traffic Signs Improperly Installed Are Still Enforceable Against a Motorist -- the Ohio Supreme Court held that improperly installed signs not in conformance with state law are still enforceable against a motorist for purposes of stopping, detaining, and investigating motorists.  An officer has a good faith basis to rely upon these signs as being properly installed.  (State v. Godwin)

07-17-06: Snow covered curb struck by the defendant -- The 3rd District Court of Appeals affirmed a trial court's decision to dismiss a DUI case after the trial court concluded that the arresting officer lacked sufficient grounds to stop and detain the defendant. The only basis to stop the defendant was the officer's observation that the defendant's vehicle went "up and down" as if it struck the curb.  The curb was snow covered. The trial court concluded that this was insufficient to stop the defendant. (State v. Bressler)

07-11-06: The Ohio Supreme Court ruled this morning that police officers cannot use incriminating statements made by a defendant  after Miranda warnings confirming statements made by the defendant before warnings were given.  Also, physical evidence seized as a result of inadmissible statements is also inadmissible. Finally, odor of alleged marijuana gives rise to probable cause to search interior of vehicle but not its trunk.  (State v. Farris)

06-30-06: S peedy Trial statute requires judge to state reasons for sua sponte continuance and the continuance by the Court must be "reasonable and necessary" (State v. Mailey)

06-30-06: Ohio DUI laws require State to prove prior OVI's, defense cannot stipulate to them (State v. May)

06-30-06: Blood tests are not admissible in Ohio DUI and Ohio Aggravated Vehicular Homicide cases if ODH regulations are not complied with (Hassler)

05-15-06: Newark, Ohio DUI Breath Test Dismissed --  Judge Rules Breath Records Violate Confrontation Clause -  Judge David Branstool, Licking County (Ohio) Municipal Court, issued an excellent written decision concluding that  state and federal Confrontation Clauses apply to Ohio DUI / Ohio OVI suppression hearings. Moreover, he found that weekly instrument check documents are testimonial and violate both the state and federal Confrontation Clauses .  (Granville v. Graziano, Licking County Municipal Court)

05-04-05 -- failure to provide arrest video to defense results in dismissal (South)

08-05-05 -- urine test suppressed when 3 ODH regulations violated by police lab

08-17-05 -- HGN must be done in strict compliance (Hall)

08-19-05 -- Breath test suppressed based upon uncertified copy of solution certificate (Skimmerhorn)

08-26-05 -- Neither an informant nor dispatcher need to testify at suppression hearing (Hancock)

08-30-05 -- sentencing everyone to jail for DUI / OVI is reversible error (Piotrowski)

09-07-05 -- dismissed charge in plea bargain can be reinstated after case reversed on appeal (Burlew)

09-27-05 -- sliding on gravel before stopping through stop sign is not violation of law (Garrett)

09-16-05-- expert can testify about acid reflux and impact on breath testing provided evidence is admitted suggesting defendant has GERD (Durnwald)

09-21-05 -- Aggravated  Vehicular Homicide reversed since hospital did not have permit to test blood (Mayl)

01-24-06 -- defendant's refusing to give a portable breath test sample is not admissible (Dials)

03-10-06 -- DUI conviction reversed. State failed to show field sobriety tests were done in substantial compliance with his training. FSTs were suppressed and lack of probable cause for DUI arrest. (Brown)

03-10-06-- breath test suppressed on Ohio DUI charge after single car accident. State could not prove time of operation or identity of driver. (Mausling)

03-30-06 -- Columbus Ohio DUI conviction affirmed after defendant's GERD theory and lack of dual testing theories were rejected by Franklin County Court of Appeals (Sabo)

03-31-06 --arrest  video evidence destroyed, state must prove evidence was inculpatory (Anderson)

05-10-06 -- The Ohio Supreme Court agreed to hear a series of cases challenging the constitutionality of ORC 4511.(D)(4(b) -- that "results of field sobriety tests are admissible if the officer administered the tests in substantial compliance (as opposed to strict compliance) with the testing standards" (Boczar)

05-11-06 -- Columbus Ohio DUI case reinstated by Franklin County Court of Appeals after the prosecutor's office won on appeal.  Defense counsel's attack on BAC Datamaster was deemed to be an improper challenge to " general reliability" (Luke)

05-19-06 -- DUI case reinstated against an intoxicated passenger who reached over, grabbed the wheel from the driver, causing the vehicle to crash.  The Hamilton County Court of Appeals concluded that the term "operate" includes any person who causes a vehicle to move.  This includes passengers.  (Wallace)

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