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Ohio OVI DUI Case Law Update

Welome to OVILaw.com's OVI CASE LAW UPDATE. This section of OVILaw.com is provided to keep those OVI attorneys / DUI attorney's up-to-date with the most recent drunk driving cases decided by the Ohio Appellate Courts, Ohio Trial Courts, other State's and Federal Courts decisions.

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Is your OVI lawyer familiar with the most recent decisions affecting Ohio dui, drunk driving, ovi cases? Attorneys listed in OVILaw.com's attorney directory are notified every time an ohio appeals court or the ohio supreme court decides a case that can help in the defense of ohio dui, drunk driving, ovi charges!

If you have already hired an OVI attorney who is not listed in the OVILaw.com attorney directory, ask him/her why they are not interested in being notified every time a relevant case is decided in the ohio appellate courts or the u.s. supreme court. Ovilaw.com provides the attorneys listed with information to help them aggressively defend Ohio dui, drunk driving, ovi cases!

Ohio OVI DUI Case Law is presented as a summary of the full text and are not intended to be a comprehensive brief of each newly decided case, but rather as a highlight of the import issues both favorable and unfavorable to those involved in the defense of OVI/DUI cases.

If you are aware of decisions that you feel are worthy of posting, but have not yet been posted, please contact OVILaw with the citation or caption of the OVI DUI Case Law.

Case Law Update Sample(s)

Below is an example of a Case Law Listing. All Case Law Listings are searchable by Case Name, Issues Keywords, and Case Summary Overview Text. Clicking the Documnet Quick Link gives you a direct link to the court published official record of the case. A membership gives you complete access to this database, and the other powerful OVILaw.com toolsets/databases including a listing in the Attorney Directory. Membership»

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Ohio OVI Case Law Updates (Sample)
State v. Shuler
7/27/2006
2006-Ohio-4336
4th District Court of Appeals

Document QUICK LINK: View Court Published Official Document

Issues: PBT, Inadmissible at trial, due process, unreliable

Case Summary Overview:
Appellant blew a .078 on a PBT, was ultimately arrested and blew .126 on the machine at the station. Court held that while the PBT can be admitted for purposes of probable cause, OAC 3701-53-02 lists those approved evidential breath testing instruments. They further go on to say that "PBT results are considered inherently unreliable because they ''may register an inaccurate percentage of alcohol in the breath, and may also be inaccurate as to the presence or absence of any alcohol at all.''" Did anyone at the 4th District actually read this reasoning before it was published????

State v. Bolish
10/16/2006
2006-Ohio-5375
12th District

Document QUICK LINK: View Court Published Official Document

Issues: prior convictions, certified copies, name, social security number, birth date

Case Summary Overview:
Defendant appealed his conviction of a 6/20 OVI. During trial he unsuccessfully objected to the admission of 4 judgment entries which contained his name, date of birth and social securit number. ON APPEAL, the 12th held that the judgment entries with the name, date of birth and SOC "presented sufficient ''evidence to identify the defendnat named in the entry as the offender in the case at bar." Appellant also unsuccessfully appealed on sufficiency of the evidence and a Miranda issue relating to some statements.

State v. Bacher
2/23/2007
2007-Ohio-727
1st District Court of Appeals

Document QUICK LINK: View Court Published Official Document

Issues: slow speed, reasonable articulable suspicion, probable cause to stop

Case Summary Overview:
Defendant was stopped for going 23 miles per hour below the posted speed limit and subsequently was arrested for OVI. Defendant''s motion to suppress was DENIED. He entered a N/C plea and appealed. HELD: Slow speed is not a valid stop. There was nothing in the record to indicate that Defendant had impeded traffic by his slow speed and there was nothing else about his driving that was articulable. THIS DECISION IS A "MUST READ" for the sake of seeing JUDGE PAINTER''s excellent sense of humor!

Granville v. Graziano
3/15/2007
2007-Ohio-1152
5th District Court of Appeals

Document QUICK LINK: View Court Published Official Document

Issues: instrument check records, non-testimonial, business records, CRAWFORD, RFI

Case Summary Overview:
Ovilaw.com member ERIC YAVITCH did a great job in the trial court in getting the trial court to understand that the instrument check documents were subject to Confrontation because they ARE testimonial. Eric also successfully pointed out that the RFI documentation didn''t indicate that the radio used was one "normally used by the law enforcement agency" as required by the OAC regs. Accordingly, the trial court granted D''s motion. The State appealled the finding that the docs were testimonial and the 5th HELD: The documents regarding the instrument check are NOT TESTIMONIAL. They further held that the RFI issue was correctly decided so the breath test was properly suppressed.

City of Eastlake v. Wilson
4/2/2007
2007-Ohio-1549
11th District Court of Appeals

Document QUICK LINK: View Court Published Official Document

Issues: 911 call, identified tipster, probable cause to stop

Case Summary Overview:
Officer recieved dispatch that another Eastlake officer had observed a silver truck weaving all over the road. The A/O observed the vehicle described in the dispatch and befan to follow it. A/O observed marked lane violations and initiated a traffic stop. Trial Court overruled the MTS and D enter NC plea and appealed. HELD: Since the "caller" was another police officer, the caller was reliable and A/O didn''t need to independently verify bad driving to make a legal stop. A/O none-the-less did observe traffic violatoins so under WHREN the stop was justifed.

City of Cincinnati v. Wood
5/25/2007
2007-Ohio-2534
1st District Court of Appeals

Document QUICK LINK: View Court Published Official Document

Issues: blood in mouth, 20 minute observation, bleeding, ODH, Compliance

Case Summary Overview:
Defendant/Appellee was involved in a crash in which the airbag deployed and caused her braces to cut the inside of her mouth. At the motion, Wood testified that during the deprivation period she was bleeding into her mouth and ingesting blood. The trial court granted the motion and the City Appealled. 1st District HELD: Blood is like saliva! It''s normally present in the body so who cares if she was bleeding into the mouth and swallowing it. Judge Hildebrant actually writes a great dissent and says blood/saliva is a bad analogy!

Norwood v. Kahn
6/8/2007
C-060497
1st District Court of Appeals

Document QUICK LINK: View Court Published Official Document

Issues: shotgun motion, substantial compliance, slight burden on State, specificity

Case Summary Overview:
THIS CASE SUCKS! The First District has officially deviated from the "PROVE IT" type of MTS and adopted the 12th District''s approach which requires the Defendant to state FACTUAL problems with the State''s evidence regarding admissibility of breath tests. Read it and weep!

City of Brecksville v. Jones
7/26/2007
2007-Ohio-3770
8th District Court of Appeals

Document QUICK LINK: View Court Published Official Document

Issues: probable cause, reasonable articulable suspcion to stop,

Case Summary Overview:
A non-OVI case in which the cops were called because a woman heard someone knocking on her front door at 11pm. A few minutes later, while responding, te arresting officer observed Defendant/Appellee''s vehicle leaving the condo complex so he stopped it. After smelling cologn, he conducted a search and found BEER in a backpack in the trunk. D was charged with underage poss. of alcohol. The trial court found that there was no reasonable articulable suspicion to stop the vehicle. HELD: The 8th district affirmed the trial court stating that there was no reason to stop - knocking on a door isn''t criminal activity. The search was bad also, because no indication of impairment or alcohol consumption.

State v. Lothes
8/20/2007
2007-Ohio-4226
11th District Court of Appeals

Document QUICK LINK: View Court Published Official Document

Issues: Destruction of video, SFST

Case Summary Overview:
Defendant/Appellant was observed driving without headlights. Shortly there after, he pulled into a drug store parking lot and the officer pulled in behind him and lit him up. The SFST''s were administered after D was heard speaking with slurred speech. While at the scene he also admitted drinking 3-4 drinks at a bar. He refused the breath test. The trial court overruled the MTS. HELD: The 11th District held that the equipment malfunction that cause the tape to be erased wasn''t a problem. AND, Defendant didn''t show that the tape would have been materially exculpatory. They did find that the State had not shown substantial compliance, then they pulled a "Homan" and found PC to arrest without the SFST''s based on the totality of the facts.

Columbus v. Weber
10/12/2007
2007-Ohio-5446
10th District Court of Appeals

Document QUICK LINK: View Court Published Official Document

Issues: PC, underage, equipment violation,

Case Summary Overview:
D was stopped for a burned out license plate light. Officer observed bloodshot, glassy eyes, STRONG odor of alcoholic beverage, failed HGN, W&T. D was arrested and blew .18. MTS was filed and argued and court found no PC to arrest after suppressing HGN and watching D''s performance on W&T. State appealed. HELD: The 10th District found that it didn''t need to consider the defendant''s age (19 yoa)because there was enough without considering age. STRONG odor, blood shot glassy eyes and failed W&T were enough, despite the trials courts commentary that D seemed to do well on the W&T, the NHTSA guidelines can''t be overlooked finding it to be the "seminal authority" citing the 12th Dist. in State v. Embree.

Rocky River v. Glodick
10/25/2007
2007-Ohio-5705
8th District Court of Appeals

Document QUICK LINK: View Court Published Official Document

Issues: speedy trial, new charges, arising from original facts

Case Summary Overview:
D was charged with OVI and after breath and urine showed NO alcohol or drugs, charges were dismissed. The dismissal occured about 3 months after the original filing of the OVI. A couple of days later, 6 minor misdemeanor charges were filed against D. D filed motion to dismiss about 4 months later and the trial court granted on speedy trial grounds. HELD: AFFIRMED!!! The speedy trial time on the MM''s was 30 days and began to run on the date of the original filing since the MM''s were not pending at the same time as the OVI. Also, the time waiver that D signed for the OVI did NOT apply to the minor misdemeanors that hadn''t been charged at the time the time waiver was signed.

State v. Zimcosky
11/26/2007
2007-Ohio-6250
11th District Court of Appeals

Document QUICK LINK: View Court Published Official Document

Issues: maximum sentence

Case Summary Overview:
Defendant/Appellant pled guilty to an F-3 OVI (prior felony OVI) and was sentenced to the MAXIMUM sentence of 5 years. He appealed his max sentence. HELD: The 11th District affirmed the sentence and held that the trial court didn''t have to give much weight to Defendant''s remorse and also mentioned that the Court didn''t have to make findings on the record regarding the likelihood of recidivism, but they did and accordingly, "the court’s ultimate sentence was neither arbitrary nor unreasonable."

State v. Molinari
10/9/2007
2007-Ohio-5395
12th District Court of Appeals

Document QUICK LINK: View Court Published Official Document

Issues: spousal privilege, wife testifying

Case Summary Overview:
After D''s arrest for OVI, the State called his wife to testify and she testified that Defendant/husband did not appear to have been drinking on the date in question, but rather, she believed he had experienced a mental breakdown. Defendant did not object to her testimony. HELD: Failure to object waived any possible error other than plain error and since her testimony appeared to help, rather than harm his case, this was not plain error. The 12th Dist. also found that trial counsel was not ineffective.

State v. Logeman
11/30/2007

1st District Court of Appeals

Document QUICK LINK: View Court Published Official Document

Issues: substantial compliance, ODH regulations, refrigeration, instrument checks

Case Summary Overview:
D was arrested for OVI and blew a .13. The trial court granted the MTS and the State/City of Cincinnati appealed. HELD: The State is not required to show that the instrument is on a dedicated circuit. The State doesn''t have to show the exact temperature of the solution when it is not in use - "cold to the touch" is apparently "substantial compliance." The State doesn''t have to show that an instrument check was ever performed prior to subject tests when the instrument was first put into use or when it came back from repair. And the State did not need to introduce 3 years of records during the MTS hearing.

State v. Grady
12/3/2007
2007-Ohio-6411
11th District Court of Appeals

Document QUICK LINK: View Court Published Official Document

Issues: prosecutorial misconduct, closing argument

Case Summary Overview:
The prosecutor commented on the fact that D''s father was an attorney during closing arguments. D moved for mistrial and the trial court/Portage County Municipal Court overruled. HELD: The 11th District held that while the remarks were inappropriate, and curative instructions were NOT given, there was plenty of evidence to convict - so, no harm, no foul!

State v. Egbert
12/5/2007

1st District Court of Appeals

Document QUICK LINK: View Court Published Official Document

Issues: ALS, constitution, plain error, prima facie proof

Case Summary Overview:
D was arrested for OVI and the matter was dismissed when the officer failed to appear for a MTS hearing. Defendant then orally moved to appeal the ALS and a hearing commenced (without the officer). At the conclusion, the trial court denied the appeal because the D, who had testified that he had blown into the machine numerous times, also addmitted on cross that the officer had accused him of messing with the machine. On appeal, D argued that the appeal should have been granted and that the statutory provision allowing the 2255 to serve as prima facie evidence is UNCONSTITUTIONAL. HELD: The 1st District held that the trial courts'' denial of the ALS appeal was proper since the trial court was in the best position to weigh the credibility of the witness. MORE IMPORTANTLY, the 1st Dist. held that since he didn''t raise the "constitutionality" issue below, it would only be addressed under a "plain error" standard. HOWEVER, "The plain-error doctrine is not favored in civil cases,9 and we are not persuaded that this case involves the exceptional circumstances required to invoke the doctrine. We therefore hold that Egbert has waived his right to assert these constitutional challenges on appeal."

State v. Crosby
12/7/2006
2007-Ohio-6511
1st District Court of Appeals

Document QUICK LINK: View Court Published Official Document

Issues: ALS, stay, DUS, driving under suspension, retroactive stay

Case Summary Overview:
On 6/24/06, D was charged with OVI and placed under an ALS in a Warren Co. court. On 7/11/2006, he was charged with DUS(als) in Hamilton Co. On 9/20/06, the Mason Muni. Ct issued a retroactive STAY of the ALS. D was convicted of DUS by the court in Hamilton Co., despite a stipulation by the State to the ENTRY staying the ALS. HELD: The 1st District held that a court can NOT retroactive stay the suspension and that D knew he was DUS on the date charged. There is a excellent dissent on this case that addresses the issue of collaterally attacking the ORDER of another court.

In Re Application of Phelps
12/12/2007
2007-Ohio-6459
Ohio Supreme Court

Document QUICK LINK: View Court Published Official Document

Issues: OVI convictions, character and fitness, bar examination

Case Summary Overview:
Petitioner was denied access to sit for the bar exam due to 2 OVI convictions, unsatisfied civil judgments and many parking tickets (some of which were unpaid). This case is a classic example of why those who are pursuing professional careers should fight their OVI''s.

State v. Decosky
12/17/2007
2007-Ohio-6760
5th District

Document QUICK LINK: View Court Published Official Document

Issues: RFI, operational manual, breath test, substantial compliance, OAC

Case Summary Overview:
After D''s arrest, he challenged the stop, and admissibility of the breath test based on RFI and operational manual issues from the OAC Regs. The trial court denied the MTS. HELD: The 5th District agreed with the trial court that even though the BAC DataMaster was placed at the county sheriff''s office and used by the S.O., a local polic agency AND the OSP. The RFI check performed by the OSP was sufficient to meet the substantial compliance requirement, even though the 3 agencies operated on different radio frequencies. AND, the fact that the S.O. only had an operational manual for the regular BAC DataMaster, and not the CDM version, that substantially complied because the differences in the manuals were minimal and those differences were insignificant.

State v. Palmer
12/21/2007

1st District Court of Appeals

Document QUICK LINK: View Court Published Official Document

Issues: AVH, Aggravated vehicular homicide, OAC, blood test, anticoagulant, double jeopardy

Case Summary Overview:
D was charged and convicted by jury of Agg. Veh. Homicide. During MTS, the trial court found substantial compliance with the OAC regs. even though there was no solid anticoagulant in the blood tube. "Instead, it contained a gel separator, which was used to separate the blood into its components for various lab tests. The toxicologist from the coroner’s lab testified that he had analyzed the blood according to the coroner’s office’s written protocol memorialized in the office’s laboratory-procedures manual. The protocol specifically provided for the analysis of gel-separation tubes. Consequently, the blood was drawn “according to the laboratory protocol as written in the laboratory procedure manual” in compliance with the administrative code." Defendant also raised prosecutorial misconduct and the 1st found that "Our review of the record shows that even if the prosecutor’s conduct was improper, none of the instances of which Palmer complains was so egregious as to affect his substantial rights or to deny him a fair trial." The 1st Dist also upheld the both convictions under "former R.C. 2903.06(A)(1)(a) and 2903.06(A)(2)(a)" despite the dissent of Judge Painter. This case is definately worth the time to read it!

State v. Dean
12/24/2007
2007-Ohio-6947
11th District Court of Appeals

Document QUICK LINK: View Court Published Official Document

Issues: mistrial, abuse of discretion, double jeopardy, motion to suppress, cross-examination, reliability, SFST

Case Summary Overview:
D was charged with 4511.19A1a and the first jury hung. A mistrial was declared and the matter was re-tried and D was found guilty by the 2nd jury. During the second trial, the judge sustained all of the State''s objections to D''s cross of the officer regarding how he administered the SFST''s. These rulings were based on the fact that D did NOT have a MTS on the admissibility of the SFST''s and the trial court believed the issue was waived. HELD: The 11th District held that the mistrial issue is an abuse of discretion matter and there was no showing that the court abused its'' discretion. The 11th also held that it was error to prohibit D from cross-examining the officer on how the fields were administered and the conviction was reversed and remanded for ANOTHER trial.

State v. Eicher
12/20/2007
2007-Ohio-6813
8th District Court of Appeals

Document QUICK LINK: View Court Published Official Document

Issues: speedy trial

Case Summary Overview:
This case involves the calculation of speedy trial time. It is an OVI case but not much attention is given to the OVI issue, but it is important because of the discussion by the 8th Dist. regarding conflict in exercising the right to a MTS vs. right to speedy trial.

State v. Combs
12/28/2007
2007-Ohio-7035
9th District Court of Appeals

Document QUICK LINK: View Court Published Official Document

Issues: prior conviction, enhance, sentence, uncounseled plea

Case Summary Overview:
D had a sentence ehancement for a "3rd" in time based on a prior uncounseled plea. HELD: The 9th District held that the sentence should not have been enhanced because D's 2nd OVI was without counsel and without a written waiver. This case is a must read!

State v. Noble
12/28/2007
2007-Ohio-7051
9th District Court of Appeals

Document QUICK LINK: View Court Published Official Document

Issues: prior conviction, enhancement, uncounseled plea

Case Summary Overview:
D was charged with a 6/20 OVI and he made a prima facie showing that one of his priors was uncounseled. Since the State was unable to prove that the right to counsel was properly waived, the trial court granted D''s motion in limine to exclude evidence of that prior. HELD: The 9th District affirmed the trial courts ruling. There is excellent language in this case and it is definately worth reading.

State v. Masters
12/31/2007
2007-Ohio-7100
6th District Court of Appeals

Document QUICK LINK: View Court Published Official Document

Issues: .081 breath test, guilty, manifest weight

Case Summary Overview:
Defendant was stopped around 0900 for speeding and subsequently tested .087 on a PBT and got 4/6 on an HGN, 1/8 on the W&T and 2/4 on the OLS. He was arrested and blew 0.081 at the post. Trial court found PC to arrested during the MTS and the case went to jury. The jury acquited on the "impaired" case but convicted on the "per se" despite the trooper admitting that the machine has an error rate of .003 and agreeing that he had no way of knowing whether D was actually an .078 or an .084. HELD: This is sufficient! "Concerning the weight of this evidence, the jury heard extensive testimony as to the possible deviations which might be inherent in the machine and found that the state had proven its case. It is not required that the trier of fact resolve all doubt. As we regularly tell our jurors: "* * * Reasonable doubt is not mere possible doubt, because everything relating to human affairs or depending on moral evidence is open to some possible or imaginary doubt. ''Proof beyond a reasonable doubt'' is proof of such character that an ordinary person would be willing to rely and act upon it in the most important of his own affairs." R.C. 2901.05(D). In this matter, the jury resolved any doubt as to the accuracy of the chemical breath test in favor of the state. We cannot say that this decision represents a jury that has lost its way or resulted in any manifest injustice."

State v. Eckert
1/14/2008
2008-Ohio-98
5th District Court of Appeals

Document QUICK LINK: View Court Published Official Document

Issues: manifest weight, failure to signal, refusal

Case Summary Overview:
D was stopped as he pulled into his drive way for not using his signal making a turn shortly before arriving home. A magistrate found D guilty after a bench trial. Objections were filed and the Judge affirmed. HELD: The 5th District held that the blooshot, glassy eyes, admission to "a few beers and the last one was about a half hour ago" and the Defendant''s refusal to submit to the breath test was sufficient to overcome the MANIFEST WEIGHT argument. CONVICTION SUSTAINED.

State v. Crowe
2/1/2008
2008-Ohio-3330
5th District Court of Appeals

Document QUICK LINK: View Court Published Official Document

Issues: statements, miranda, custody, front seat of cruiser, PBT

Case Summary Overview:
D was stopped for speeding. He was removed from his vehicle and placed in the front seat of the cruiser for the HGN. The officer observed 2 clues but was not able to complete the test because D kept talking. She smelled odor of alcoholic beverage and D''s eyes were bloodshot and glassy. He initially denied drinking then admitted he had 1 beer earlier. He submitted to a PBT and blew .039. He then admitted 2 or 3 beers earlier. The A/O got him out of the vehicle, cuffed him and placed him in the backseat of the cruiser. He later submitted to a breath test at the post and blew .041. The trial court denied the MTS and D pleaded N/C and appealled. HELD: The 5th District held that the officer had PC to stop, and even without the PBT had PC to arrest. Further, D was NOT in custody while in the front seat because he wasn''t patted down, his keys weren''t taken from him, there wasn''t a lengthy questioning session and he wasn''t told that his vehicle would be search. Therefore, admissions of drinking are not suppressable. The 5th distinguished this fron State v. Farris based on the above facts. Even without the PBT there was still enough for PC to arrest!

State v. Ahmed
2/5/2008
2008-Ohio-389
5th District Court of Appeals

Document QUICK LINK: View Court Published Official Document

Issues: PBT, admissibility, independent blood test, admissibility

Case Summary Overview:
Defendant was arrested after a brief investigation where he apparently passed a PBT. He was charged with A1a and A2 for refusing at the OSP Post. Upon release, he went and got a blood test that showed a .04 BAC. Trial court prohibited the blood test result as well as any discussion on the video of arrest about the PBT. A jury convicted and D appealled. HELD: The 5th District held that it was not improper to exclude testimony of the blood or PBT!!! Because after all, they don''t have anything to do with the A1a offense!

State v. Kincaid
2/5/2008
2008-Ohio-376
6th District Court of Appeals

Document QUICK LINK: View Court Published Official Document

Issues: blood, refrigeration, Mayl, substantial compliance, ODH regulations

Case Summary Overview:
This case involves a MTS challenging compliance with ODH regs for a blood sample drawn from Defendant after a crash involving a fatality and other serious injuries. And during the MTS hearing, the state failed to show that the blood sample had been refrigerated during a six month period. The trial court overruled the MTS. D was convicted and appealled. HELD: The 6th District held that by failing to show the blood was refrigerated during the 6 month period in question, the State failed to show substantial compliance with ODH regs.

State v. Matus
2/5/2008
2008-Ohio-377
6th District Court of Appeals

Document QUICK LINK: View Court Published Official Document

Issues: Blood test, warrant, unconstitutional, SFST

Case Summary Overview:
D was arrested for OVI and due to 2 prior convictions, A/O got a warrant to collect blood. D moved to suppress the blood arguing that the collection violated his constitutional rights. He also challenged the procedure in which the SFST''s were administered. The trial court over ruled both. HELD: The 6th district held that there were no Constitutional issues with regard to blood being drawn from a valid search warrant. They did however agree with D that the State has a burden of establishing what the NHTSA standards are and that they were complied with, if there is no request for judicial notice.

State v. Bird
2/11/2008
2008-Ohio-540
4th District Court of Appeals

Document QUICK LINK: View Court Published Official Document

Issues: 4511.20, 4511.70, obstructed side view mirror, too many passengers, reasonable suspicion, PC

Case Summary Overview:
D was stopped because A/O could tell there were alot of psgrs in the vehicle and thought that the side view mirror might have been obstructed by the lap passenger sitting on the front passengers lap. After the stop, the officer discovered there were 9 people total in the PT Cruiser. The trial court over ruled the MTS. HELD: The 4th District held that it was reasonable for the officer to believe that the mirror was obstructed. There is lots of language in this decision to justify an otherwise weak stop.

State v. Milazzo
2/13/2008

1st District Court of Appeals

Document QUICK LINK: View Court Published Official Document

Issues: Ineffective assistance of counsel

Case Summary Overview:
D had been drinking and called a cab. When he couldn''t get money out of 2 different ATM''s, he had the cabbie drive him home and he got in his van and was going to go get money from a different ATM. Instead, he backed into the cab, and the cab driver called the Po Po. At trial, counsel for D stipulated to the intoxication and argued that the cab hit the van. That dog didn''t hunt and D was found guilty! HELD: Counsel was NOT ineffective given all the testimony of D and the cabbie.

State v. Macalla
2/15/2008
2008-Ohio-569
8th District Court of Appeals

Document QUICK LINK: View Court Published Official Document

Issues: identification, priors, specification, uncounseled

Case Summary Overview:
Defendant was charged and ultimately convicted by jury of F4 OVI''s with a specification for 6 in 20. He filed an appeal raising issues that the State didn''t prove the priors were counseled. HELD: The 8th District held that a Defendant has to show a prima facie showing that the priors were constitutionally infirm. This wasn''t done. This case has a bad outcome for Defendant/appellant, but has some great language for those handling specification OVI''s. D also lost his speedy trial argument and the other arguments raised.

State v. Simpson
2/19/2008
2008-Ohio-632
5th District Court of Appeals

Document QUICK LINK: View Court Published Official Document

Issues: exigent circumstances, search

Case Summary Overview:
D crashed his truck INTO a mobile home, nocking it off its'' foundation. D fled the scene prior to the PoPo''s arrival. After running the license, they found the owner lived just a couple of blocks away AND he had active arrest warrant out of another county. The police also observed a cracked windshield and blood in the truck. One of the officers went to D''s humble abode and stood upon a planter to shine his flashlight into the residence whereupon he saw D duck out of sight. The officer gave the respectful command of "Get your ass out here or I''m commin'' in." D came outside and was arrested. HELD: Exigency permits the intrusion! Active arrest warrant AND the officer needed to make sure that D was not injured and in need of medical attention.

State v. Welch
2/20/2008
2008-Ohio-675
4th District Court of Appeals

Document QUICK LINK: View Court Published Official Document

Issues: MTS, general claims, specificity, particularity, RFI, Senior Operator, batch certificate, photo copy

Case Summary Overview:
D/Appellant was arrested for OVI and had a prohibited level of alcohol in his breath. At the MTS, all issues were overruled. HELD: The 4th District held that a photo copy of the batch certificate is OK (see State v. Edwards), and the checklist from the instrument check form has the box checked that RFI was checked so that''s OK too. Finally, since the officer who performed the relevant instrument check signed on the line reserved for a "senior operator" this was OK too. There is no indication whether there was any cross examination on any of these issues but based on the language of the decision, this commentator isn''t sure that would have mattered.

State v. Blades
2/20/2008

1st District Court of Appeals

Document QUICK LINK: View Court Published Official Document

Issues: voluntary, volition, no memory, vicodin, ambien

Case Summary Overview:
D was taking meds (as prescribed)for pain and insomnia. She apparently got up from bed and got into the car, drove and hit 2 parked cars. She was arrested for OVI and urine showed the 2 drugs. She was convicted after a bench trial. HELD: The 1st District held that since she was "conscious, her actions were a product of her own volition." Not remembering and voluntariness are not the same thing. Maybe someone should have read the following article! www.eagletribune.com/punews/local_story_335015746.html

State v. Putich
2/22/2008
2008-Ohio-681
8th District Court of Appeals

Document QUICK LINK: View Court Published Official Document

Issues: prior conviction, uncounseled, prima facie showing

Case Summary Overview:
The 8th District reversed the Common Pleas decision to grant Defendants motion dismissing the 6 in 20 felony based on a prior uncounseled plea. HELD: The 8th District found that the Defendant/Appellee had not established a prima facie showing that his prior from a mayor''s court was uncounseled. Simply attaching a copy of the judgment entry to his motion was insufficient.

State v. Conley
2/15/2008
2008-Ohio-609
2nd District Court of Appeals

Document QUICK LINK: View Court Published Official Document

Issues: MTS, motion to suppress, specificity, hearing, OAC, substantial compliance, slight burden, prima facie

Case Summary Overview:
D/appellant was arrested and charged with a per se violation. He immediately filed a MTS raising the OAC regs. On the date of the hearing, he narrowed the issues to only address proper calibration. The State moved to strike because no factual basis had been stated and the trial court agreed. HELD: The 2nd District REVERSED the trial court and found that stating the OAC code sections is sufficient to require the State to go forward and establish a prima facie showing of substantial compliance. D nor his counsel need NOT go to the station to review the records in order to get a hearing. With no specific failures stated, the burden on the State remains slight and general but they do have a burden!

State v. O'Neill
2/29/2008
2008-Ohio-818
6th District Court of Appeals

Document QUICK LINK: View Court Published Official Document

Issues: blood, OAC, substantial compliance

Case Summary Overview:
D was involved in a hit & run Agg. Veh. Homicide/Assault. After he was eventually stopped, a warrant was obtained to extract blood. D filed a motion to suppress the .214/.219 blood test results. At the hearing on the MTS, D did NOT cross-examine the phlebotomist or the lab person who tested the blood. And, apparently his written MTS only cited the OAC code sections. The MTS was over ruled and he entered an NC plea and was given a total of 12 years at the license plate factory! He timely appealed and argued that the trial court erred when it over ruled his MTS on substantial compliance grounds. He also appealed the sentence. {¶ 33} While Crim.R. 47 requires a defendant to state his grounds for a motion to suppress "with particularity," the state waives this issue if it is not raised in opposition to a defendant''s motion to suppress. State v. Mayl, 2003-Ohio-5097, ¶ 22. Having reviewed the state''s motion in opposition, this issue was clearly waived as the state focused only upon the probable cause supporting the warrant and did not mention a lack of specificity. Further, the 6th District held: {¶ 34} Because the state did not demonstrate substantial compliance in its blood draw procedures in this instance, the trial court erred as a matter of law in shifting the burden to appellant to demonstrate prejudice. The trial court also erred as a matter of law by directly contradicting Burnside. The state was required to establish – without appellant''s assistance – substantial compliance. Lack of proof of Ohio Adm.Code 3701-53-05(C) is not substantial compliance. Burnside, supra. While lack of compliance with Ohio Adm.Code 3701-53-05(B), 3701-53-05(E), and 3701-53-06, may each separately constitute "de minimus" errors, the cumulative effect is greater than "de minimus." Appellant''s motion to suppress the blood-alcohol test results should have been granted, and therefore, his third assignment of error is well-taken.

State v. Sullivan
3/5/2008
2008-Ohio-896
5th District Court of Appeals

Document QUICK LINK: View Court Published Official Document

Issues: slow speed, tipster, probable cause to stop

Case Summary Overview:
After an argument, D''s girlfriend called the police indicating that they had an argument and he left and she thought he was possibly intoxicated. D was observed traveling 20 mph in a 35 mph zone. He then pulled into a restaurant and an investigation was initiated. He was arrested and filed a MTS. The trial court granted the MTS and found that the tip was not reliable and there was no pc to stop. HELD: The 5th District held that even without the tip, there was sufficient PC to stop based on the slow speed and a line of approx. 10 cars behind D.

State v. Prater
3/6/2008
2008-Ohio-966
4th District Court of Appeals

Document QUICK LINK: View Court Published Official Document

Issues: OVI, bicycle, 4511.52,

Case Summary Overview:
Defendant was indicted on 2 counts of OVI (from 2 seperate "stops" a couple of weeks apart). He argued that 4511.52 states that 4511.19 does not apply to bicycles. He was wrong! HELD: The 4th District held that if the bicycle is being operated on a "street" or "highway" or upon a path designated for bicycle use, then 4511.19 applies based on the plain language of 4511.52(A).

State v. Plunkett
3/10/2008
2008-Ohio-1014
12th District Court of Appeals

Document QUICK LINK: View Court Published Official Document

Issues: substantial compliance, specificity, particularity, SFST, OAC, motion to suppress, boilerplate, shotgun,

Case Summary Overview:
The 12th District continues it''s assault on the CONSTITUTION of the UNITED STATES and the Ohio Constitution! Defendant was arrested for OVI and after filing a boilerplate motion that took a shotgun approach by listing a laundry list of items that D wanted the State to establish a foundation for admissibility. The 12th District issued another BOILERPLATE decision citing a LAUNDRY LIST of things that D didn''t do to assist the State in his own prosecution! This decision continues the trend of requiring almost NO EFFORT by the State to get breath tests admitted into evidence or show that SFST''s were administered properly. YOU MUST READ THIS DECISION!!!

State v. Price
3/17/2008
2008-Ohio-1134
11th District Court of Appeals

Document QUICK LINK: View Court Published Official Document

Issues: blood, OAC, substantial compliance, specificity, sentence

Case Summary Overview:
D was charged with Agg. Veh. Homicide after being involved in an accident where his SUV hit a motorcycle. Trooper showed up at hospital and collected blood that sat in his cruiser for 6(+) hours before being mailed and then was in the mail for 8 days before arriving at the lab. Defendant''s MTS was denied and a plea was entered resulting in a 6 year sentence for the AVH and other sanctions. D appealed. HELD: The 11th District held that 6 hours in the cruiser (during August) and 8 days in the mail was not unreasonable. Many other issues were overruled and affirmed too. This case is worth reading.

State v. Booth
3/21/2008

1st District Court of Appeals

Document QUICK LINK: View Court Published Official Document

Issues: Belching, 20 minute observation period, deprivation period

Case Summary Overview:
After being arrested for OVI, D was observed belching several times while waiting to take the breath test. No new deprivation period/observation period was initiated. D''s result printed out at .355. The motion to suppress was overruled and D pled then appealed. HELD: Since the cop didn''t "see" any regurgitation and according to the cop, the machine didn''t produce a result that indicated mouth alcohol, it MUST be good! AFFIRMED!

State v. Massie
3/21/2008
2008-Ohio-1312
2nd District Court of Appeals

Document QUICK LINK: View Court Published Official Document

Issues: Daubert, limine, 20 minute observation, memorandum from Department of Health

Case Summary Overview:
Defendant filed a motion in limine attacking the breath results under Daubert. This was due to invalid samples and then "valid" tests received shortly after. The trial court denied the motion. HELD: The 2nd District held that the Daubert motion filed by D was a "general attack" on the breath test instrument and not a challenge to D''s specific tests. There is some interesting language in this case for anyone who wants to fight a breath test case.

Cincinnati v. Luckett
3/28/2008

1st District Court of Appeals

Document QUICK LINK: View Court Published Official Document

Issues: weaving, within ones own lane, erratic driving

Case Summary Overview:
Weaving within his lane was the basis of Mr. Luckett''s stop. The trial court denied the MTS. HELD: The 1st District affirmed finding that if the weaving within the lane is severe enough, it can constitute erratic driving and justify a traffic stop.

State v. Moyer
3/31/2008
2008-Ohio-1497
11th District Court of Appeals

Document QUICK LINK: View Court Published Official Document

Issues: double jeopardy, felony ovi, 5 prior convictions

Case Summary Overview:
D appealed his conviction to a felony OVI and the "5 priors" specification. HELD: The 5th District (along with every other district that has addressed it) held that this does NOT violate the double jeopardy clause of the Constitutions.

State v. Maloney
3/31/2008
2008-Ohio-1492
11th District Court of Appeals

Document QUICK LINK: View Court Published Official Document

Issues: 911, tipster, identified caller, substantial compliance, SFST''s

Case Summary Overview:
D was observed stopping his car, getting out to puke and then driving a short distance and doing it again. This was done in front of a firefighter for the same area where he was stopped. The firefighter followed him and observed marked lane violations and speeding. The firefighter called 911 and stayed on the line until D was stopped. Also, a 2nd called advised 911 that they also advised that the saw D puke, speed and weave. Upon pulling into a driveway, the arresting officer pulled in, spoke with D (no slurring and no problem getting ID) who admitted drinking at a golf outting and thinking he had contracted the "rotavirus" from his son.?. (Maybe he had the "19th hole flu"). The cop asked him to exit and then observed vomit on his pants. He asked D to do SFST''s and an arrest followed. The trial court denied the MTS and D appealled. HELD: The stop was ok because the firefighter was reliable (identified) and corroberated by another caller. The SFST''s were in substantial compliance, essentially because the cop who administered them said so! This case is definately worth reading.

State v. Bauerle
3/31/2008
2008-Ohio-1493
11th District

Document QUICK LINK: View Court Published Official Document

Issues: chewing gum, ODH, substantial compliance

Case Summary Overview:
D was sitting at a stop light and when the light turned green she accelerated and hit a pedestrian in the cross-walk. Cops showed and smelled moderate odor of ETOH and D admitted have one drink (a gin) earlier. Upon the advice of her atty-husband, she refused to do SFST''s and then back at the station, with hubby present, she took the breath test. Just prior to the test, she was asked if she had anything in her mouth and she replied "NO." Shortly after the test, she was observed laughingly telling her husband she had gum in her mouth and that it would invalidate the test. She was also observed chewing it at that point. The trial court overruled the MTS after JOHN KUCMANIC from the ODH testified that gum in the mouth during the test won''t have any effect on the test! She pleaded NC to the Felony and ovi. HELD: The 11th District held that gum won''t invalidate it if they have anything to say about it! AFFIRMED! READ THIS CASE!

State v. McGeorge
3/31/2008
2008-Ohio-1480
12th District Court of Appeals

Document QUICK LINK: View Court Published Official Document

Issues: RAS, probable cause, reasonable suspicion, objectively reasonable police officer

Case Summary Overview:
D was stopped because one of his tail lights was emitting white light (not red). Upon being stopped the "objectively reasonable police officer" noticed a cup of beer in the cup holder and soon learned D was DUS. The MTS was denied and an appeal followed. HELD: The 12th District, being true to form, applied the "DSOB" standard! Loosely translated, that''s the "dumb son-of-b*tch" standard to the police officer. What they like to call the "objectively reasonable officer" standard actually amounts to "what ever the cop says..." is OK by us standard! What''s interesting is that one of the cases they site to, State v. Walters, 12th Dist., 2005-Ohio-418, contained a dissent that suggested the cops are in the best position to "know the law." Unfortunately, it was a DISSENT and that judge didn''t site on the instant matter. This commentator''s views are obviously intended for some entertainment value but this case should be read by those practicing in the 12th District.

State v. Frasure
3/31/2008
2008-Ohio-1504
11th District Court of Appeals

Document QUICK LINK: View Court Published Official Document

Issues: destruction of evidence, bad faith, Geeslin, potentially useful, Youngblood

Case Summary Overview:
D was involved in a fatal crash killing the passenger of the vehicle that turned left in front of D. The OSP destroyed D''s vehicle prior to her being indicted. D was given expense money by the court for a crash investigator who ultimately testified that the vehicle inspection would have been necessary to rule out issues with brakes and other matters. The trial court denied the MTS. HELD: The 2:1 decision went out of its'' way to excuse the actions of the OSP!!! THIS CASE SUCKS and should be read!!! As is often the case, it has a good dissent.

State v. Kuhl
4/4/2008
2008-Ohio-1641
6th District Court of Appeals

Document QUICK LINK: View Court Published Official Document

Issues: tail light, reasonable articulable suspicion, detain

Case Summary Overview:
D was stopped for having no tail lights. The trooper told her she could drive a short distance with her hazard lights on, but D decided to install a new fuse for the tail lights. During her discussions with trooper regarding the tailights, he noticed strong odor of ETOH, bloodshot glassy eyes and she admitted to drinking "not too much." The trial court denied her MTS when it was argued that there was a "second" stop/detention after being told she could drive on with the hazard lights on. HELD: The 6th District held that this was one stop and that the officer was justified in administering SFST''s and arresting D.

State v. Volpe
4/8/2008
2008-Ohio-1678
10th District Court of Appeals

Document QUICK LINK: View Court Published Official Document

Issues: Agg Vehicular homicide, statements, pre-arrest refusal, allied offenses of similar import, hospital records

Case Summary Overview:
D was invovled in a single car crash that ejected and killed her own 6 year old daughter. This took place after 2 motorists had called 911 to advise of drunk driver hitting curb, crossing center line, stopping well before stop line at lights and have to be honked at to procede through green lights. D was indicted on 2 counts of AVH and felony ovi with a 6 in 20 spec. The trial court denied her MTS and a jury convicted on all counts. HELD: The 10th District affirmed on all issues. There are a lot of issues in this case that are worth reading.

State v. Steerman
4/9/2008
2008-Ohio-1691
11th District Court of Appeals

Document QUICK LINK: View Court Published Official Document

Issues: statements, custodial interrogation, breath test, sufficient particularity

Case Summary Overview:
D was arrested after he was found by trooper in the area where D''s car was stuck on a utility pole guide wire. He was put in trooper''s cruiser for questioning after trooper noticed the bloodshot glassy eyes, slurred speech and unsteadiness. He was ultimately arrested and performed a breath test. D''s written motion did not list the specific section of the ORC that states breath must be collected in 3 hrs, but it did state that he was challenging the time of the accident and collection within 3 hours. He also challenged the statements made in the trooper''s cruiser. The Trial Court granted the motion as to the breath test and the statements but found PC to arrest. THE STATE APPEALED. HELD: The custodial statements in the (trooper''s)cruiser were custodial and no error in suppressing them (See State v. Farris). Also, the MTS stated with sufficient particularity the issue of the timing of the breath test and the fact that the specific code section wasn''t listed doesn''t matter. AFFIRMED!!!

State v. Ross
4/11/2008
2008-Ohio-1758
2nd District Court of Appeals

Document QUICK LINK: View Court Published Official Document

Issues: admissibility, breath test, 2 hours

Case Summary Overview:
D was involved in a motorcycle accident and given ride home by passerby. Police showed up shortly after and transported back to the scene where he was turned over to OSP. Eventually he was arrested and tested over the per se limit. He filed and argued a MTS on the admissibility of the breath test (2hour rule) and PC to arrest. "The court found that the breath test was not shown to have been administered within the two-hour time frame required by R.C. 4511.19(D)(1)(b). However, the court concluded that the test result could be admitted for whatever probative value it had." D entered a NC plea to the per se violation and appealed. HELD: The 2nd District held that the court should not have admitted the test for the per se violation but notes an important distinction between admissibility for the per se vs. an impaired case. Read this decision!!!

State v. Murphy
4/11/2008
2008-Ohio-1744
4th District Court of Appeals

Document QUICK LINK: View Court Published Official Document

Issues: agg vehicular homicide

Case Summary Overview:
This case invovled an accident in which the driver of the other vehicle died and another person was injured. A jury convicted on the agg veh. hom. and the agg veh. assult. D appealed. HELD: The 4th District held that "there was evidence that Murphy slurred his speech, had difficulty walking, was confused and disoriented, and had bloodshot eyes. Furthermore,there was evidence that Murphy had run a stop sign, and, therefore, was driving erratically. Patrick Allen testified that Murphy smelled like he had been drinking heavily, and Murphy admitted to drinking six to ten beers before the accident. Sergeant McKeever and Trooper Hutton each testified that Murphy appeared to have been impaired by alcohol. The State presented sufficient evidence to allow a jury to determine whether Murphy operated a vehicle while under the influence of alcohol."

State v. Derov
3/28/2008
2008-Ohio-1672
7th District Court of Appeals

Document QUICK LINK: View Court Published Official Document

Issues: PC to arrest, probable cause, PBT, admissibility, inadmissibility, inherently unreliable, OLS, HGN, one beer, Dixon

Case Summary Overview:
D was stopped for expired license plates. No erratic driving was observed, slight odor smelled, admission of one beer and poorly administered SFSTs. MTS was held and the trial court overruled it. A NC plea was entered and D appealed. HELD: The 7th District held that there was NO PC to arrest!!!! The sfst''s were NOT given in substantial compliance and the court should NOT have admitted the PBT result. THIS IS A GREAT DECISION AND IS A MUST READ!!!!

State v. Lynch
4/11/2008
2008-Ohio-307
Medina Municipal Court

Document QUICK LINK: View Court Published Official Document

Issues: sealing record of acquittal, record of non-conviction

Case Summary Overview:
This case was found on the Misc. Decisions and relates to a D who was ACQUITTED by a jury of OVI (in 2003). In 2007 he filed a motion to seal the record of non-conviction pursuant to ORC 2953.52. The trial court denied his petition! This case is worth reading because it discusses the issue of cases being reduced to Reckless Operation and how there are only certain legitimate reasons to reduce, otherwise judges are violating the Code of Judicial Conduct.

State v. Blackburn
4/23/2008

Ohio Supreme Court

Document QUICK LINK: View Court Published Official Document

Issues: speedy trial, tolled, subsequent charges, same facts

Case Summary Overview:
The Supreme Court issued a slip opinion dealing with subsequent charges arising from the same facts. They discuss State v. Adams, 43 Ohio St.3d at 68, 538 N.E.2d 1025, an OVI case, and distinguish the present case from Adams. This case is worth reading!

State v. Jackman
4/24/2008
2008-Ohio-1944
8th District Court of Appeals

Document QUICK LINK: View Court Published Official Document

Issues: prior convictions, uncounseled, enhance, felony OVI, NHTSA, manual, expert testimony

Case Summary Overview:
D was charged with a 6th in 20 felony OVI. He file a motion to quash regarding the 5 priors alleging that they were uncounseled. The state showed evidence that 3 were counseled and 2 had written waivers. He also argued for the suppression of the SFST''s based on the state not introducing the NHTSA manual or expert evidence. The trial court denied the MTS. HELD: The 8th District held that the evidence regarding the priors was sufficient and OHIO law does not require the manual to be offered into evidence nor does it require expert testimony regarding the correct SFST procedures. The officers testimony was good enough.

State v. Miko
4/28/2008
2008-Ohio-1991
9th District Court of Appeals

Document QUICK LINK: View Court Published Official Document

Issues: LTI 20-20, judicial notice, laser, speeding

Case Summary Overview:
D was charged with speeding and went to trial in front of a magistrate. He was found guilty and the Judge overruled his objections to the magistrate decision. HELD: The 9th District held that the magistrate improperly took judicial notice of the LTI 20-20. There is nice language in this decision discussing how a court can take judicial notice of the laser device.

City of Cuyahoga Falls v. Pollack
4/30/2008
2008-Ohio-2024
9th District Court of Appeals

Document QUICK LINK: View Court Published Official Document

Issues: reasonable articulable suspicion to stop

Case Summary Overview:
D was observed stopped at a red light but was approx. 2 car lengths from the stop bar. After the light changed, the officer lost sight of him and radioed for other units to be on the look out. Another officer observed a vehicle matching the description behind the local church, lights out and then pull out from an access road. An "investigatory stop" was initiated and D was subsequently arrested and charged with 4511.19(A)(1)(a) & (A)(1)(d). The trial court granted his motion to suppress and the State appealed. HELD: The 9th District held that the stop was good! The 9th states: "“‘While there may be some lawful reason for someone to be behind a closed commercial building in a truck with extinguished lights late at night, it requires exertion to conceive of such a reason.’” State v. Rhines (Aug. 10, 1994), 9th Dist. No. 16548, at *2, quoting State v. Howard (Mar. 31, 1993), 6th Dist. No. L-92-261, unreported, at 3."

State v. Dixon
4/29/2008
2008-Ohio-2018
10th District Court of Appeals

Document QUICK LINK: View Court Published Official Document

Issues: request for attorney, jail, refusal, 5th Amendment, 6th Amendment, 14th Amendment

Case Summary Overview:
D was an underage arrested for OVI who had made several requests to speak with an attorney prior to taking the breath test. The arresting officer told her if she didn''t take the test, she would be taken to jail, but if she did take it she would be released. She ultimately took the test without being able to talk to her attorney. The trial court overruled D''s MTS. HELD: The 10th District held that while the officer violated ORC 2935.20, which guarantees the right to counsel, it did not violate D''s Constitutional Rights and accordingly doesn''t invoke the exclusionary rule.

State v. Cereghin
5/5/2008
2008-Ohio-2118
3rd District Court of Appeals

Document QUICK LINK: View Court Published Official Document

Issues: crossing the center line, probable cause to stop, search

Case Summary Overview:
D was psgr in a vehicle stopped for crossing the center line. Upon approach, the trooper noticed the smell of raw marijuana. He removed the driver then went to question the psgr. When he asked the psgr about a bag sticking out from under the seat, the D indicated it was his lunch. The trooper tried to reach for the bag & D pushed his hand away with his foot. The trooper testified that D was free to leave at this point and he then reached his hand into the bag and found the raw marijuana. The trial court overruled the MTS. HELD: The 3rd District held that crossing the centerline IS a violation and accordingly the officer had PC to stop. Also, since the cop said D was free to leave, there was no requirement for Miranda prior to questioning.

State v. Wang
5/5/2008
2008-Ohio-2144
5th District Court of Appeals

Document QUICK LINK: View Court Published Official Document

Issues: ODH regulations, checklist, testimony, specificity, crawford

Case Summary Overview:
D was arrested for OVI and during the MTS, the State offered a "checklist" completed by the officer that had performed the instrument check even though the officer was not present. The trial court admitted the checklist over the objection of D. HELD: The 5th District found that this check list is good enough. Is there really a need for live testimony after this decision??????

State v. Fuhrman
5/5/2008
2008-Ohio-2123
11th District Court of Appeals

Document QUICK LINK: View Court Published Official Document

Issues: OMVUAC, breath test, probable cause, under arrest

Case Summary Overview:
D was stopped for speed and the cop ran his license. When the license came up "fail to reinstate," D was placed in the crusier and the a/o asked if he could search the vehicle. When he returned from searching, he noticed odor of alc. bev. D was placed under arrest for DUS/fail to reinstate and paraphernalia. Once back at the station, the a/o administered SFST''s and a breath test. The trial court denied D''s MTS. D pled and apppealed the MTS decision. HELD: The 11th District held that since D was lawfully arrested for the DUS & paraphernalia, the subsequent breath test was OK,especially since they followed the procedures set forth in 4511.191.

State v. Sartain, Sr.
5/5/2008
2008-Ohio-2124
11th District Court of Appeals

Document QUICK LINK: View Court Published Official Document

Issues: prior conviction, withdraw, guilty plea, manifest injustice

Case Summary Overview:
D was charged with 2 counts of OVI and the "5 priors in 20 years" specifications on each. He pleaded guilty to the A1a and the accompanying spec and received 2 yrs on the OVI and 2 yrs. on the spec., consecutively. He hired new counsel and filed a motion to withdraw the G plea based on alleged uncounseled priors. He also filed an affidavit regarding the uncounseld priors. The trial court denied the motion and he appealed. HELD: The 11th District held that the State''s response to the motion to withdraw was sufficient to overcome the allegation that D had not waived counsel on one of the pleas and they apparently could prove 4 others. Also, since this was filed as a motion to withdraw plea, and not a motion to dismiss, the D also carried the burden of showing that there was a manifest injustice if he was not permitted to withdraw his plea. (I guess 4 years in prison doesn''t count as a manifest injustice).

State v. Janick
5/5/2008
2008-Ohio-2133
11th District Court of Appeals

Document QUICK LINK: View Court Published Official Document

Issues: PBT, refusal, admitted, plain error,

Case Summary Overview:
D was stopped and after an HGN and OLS, was requested to do a PBT - he declined. He was then arrested and ultimately the case went to a jury. During the trial, a video was presented by D''s counsel and it contained the refusal of the PBT, along with discussion of his 5 prior convictions. Nothing had been redacted! HELD: The 11th held that it''s not plain error, nor was it the Court''s fault, that a video was admitted that had not been redacted. D also complained about ineffective and the 11th held that it was error on his counsel''s part, but that nothing done rose to the level of plain error.

State v. Howard
5/9/2008
2008-Ohio-2241
2nd District Court of Appeals

Document QUICK LINK: View Court Published Official Document

Issues: reasonable suspicion, probable cause to arrest

Case Summary Overview:
D was stopped for speeding. A/O observed strong odor of ETOH and b/s & glassy eyes. D eventually admitted 1 beer. He complied with request to do SFST''s and ultimately failed a PBT. The trial court overruled D''s motion to suppress. He pled NC and pursued this appeal. HELD: The 2nd District held that this case can be distinguished from Spillers and Dixon. The speed in this case was not a deminimus violation and the odor was strong. Also, a 40 second OLS IS substantial compliance. This is a suprisingly State-Oriented decision for the 2nd District and worthy of reading.

State v. Bailey
5/12/2008
2008-Ohio-2254
3rd District Court of Appeals

Document QUICK LINK: View Court Published Official Document

Issues: probable cause to arrest, information, knowledge of arresting officer at time of arrest.

Case Summary Overview:
This is a GREAT decision for the DEFENSE, affirming the trial court''s decision, the 3rd District held that the observations and testimony of the concerned citizen that called 911 should NOT be imputed to the arresting officer if he didn''t have actual knowledge of the callers statements. Also, based on the totality of the circumstances, there was NOT probable cause to arrest. There is lots of great language in this case including discussion that the officer was trained that it should take 68 seconds to perform the HGN. THIS CASE IS A "MUST READ!"

State v. Karkiewicz
5/12/2008
2008-Ohio-2256
3rd District Court of Appeals

Document QUICK LINK: View Court Published Official Document

Issues: fog line, rumble strip, probable cause, reasonable articulable suspicion, community care taking

Case Summary Overview:
This is not an OVI case but important to read none-the-less. D was operating an 18-wheeler when he drifted over the fog line and onto the rumble strip for a short period of time (at 0230). He was stopped and ultimately cited for Gross Overload. He filed a MTS and the trial court held that the officer didn''t have reasonble artic. suspicion or PC to stop. HELD: AFFIRMED. The 3rd held that they "may" have reached a different decision, however, the trial court apparently wasn''t buying what the officer was selling.

State v. Zavac
5/9/2008
2008-Ohio-2208
6th District Court of Appeals

Document QUICK LINK: View Court Published Official Document

Issues: speedy trial

Case Summary Overview:
The zealous efforts of counsel resulted in the 6th District REVERSING the Maumee Muncipal Court''s denial of Defendant''s motion to dismiss on speedy trial grounds. There were actually many issues in this case that the 6th District was able to dodge by discharging the Defendant on speedy trial grounds. An interesting note is that this case was handled by an outstanding member of the Cincinnati area bar who went up to Maumee and refused to give up, despite the "less than welcome" treatment he constantly received. He who laughs last laughs the loudest!

State v. Slider
5/14/2008
2008-Ohio-2318
11th District Court of Appeals

Document QUICK LINK: View Court Published Official Document

Issues: driving on the center line, PC to stop

Case Summary Overview:
D was observed driving onto the center line 4 times including while approaching the crest of a hill. The trooper stopped and subsequently cited for OVI. The trial court denied his MTS and he pursued his right of appeal. HELD: The 11th Dist. held that the driving on the center line 4 times was sufficent to meet both prongs of 4511.33 ("as nearly as practical" prong and the "safety" prong).

State v. Waugh
5/6/2008
2008-Ohio-2289
10th District Court of Appeals

Document QUICK LINK: View Court Published Official Document

Issues: jury view, impounded vehicle

Case Summary Overview:
There was no abuse of discretion in not allowing a jury view of the impounded vehicle involved in an accident that led to DUI charges. The Accident Reconstructionist expert witness (Jack Holland -- former head OSP Accident Reconstructionist) advised the court that testimony and photgraphs would not suffice. Trial Judge denied the request and 10th District upheld the decision. Court also held that there was sufficent evidence for the conviction -- AND IT TOOK 25 PAGES to make that finding. OVILAW.com cannot recall any court that ever needed 25 pages to reject a sufficieny of evidence argument in a DUI case. Talk about conflicting evidence!

State v. Murphy
5/16/2008
2008-Ohio-2382
6th District Court of Appeals

Document QUICK LINK: View Court Published Official Document

Issues: motion to withdraw plea, after sentencing

Case Summary Overview:
D entered a plea to a felony ovi with spec. and during the plea colloquy,the judge indicated that a community based program (CROSSWAEH)was a possibility. During the PSI it was indicated to D that he was NOT eligible for CROSSWAEH and he moved to withdraw the Guilty plea. The trial court denied his motion. HELD: The 6th District held that it was clear from the record that the court indicated the program was a possibility and that it erred by not permitting him to withdraw his plea.

State v. Moore
5/19/2008
2008-Ohio-2407
3rd District Court of Appeals

Document QUICK LINK: View Court Published Official Document

Issues: marked lane violation, fog line, 1/2 car width, Phillips

Case Summary Overview:
While making a left-hand turn, D drove his vehicle approximately ½ a car width over the fog line (and off the road), then came back into his lane of travel. This was observed by a trooper who initiated a traffic stop based on this driving and an OVI charge followed. The trial court overruled the MTS and a NC plea was entered. HELD: The 3rd District distinguished this case from its’ own decision in State v. Phillips and found that the officer had a reasonable articulable suspicion to make the stop. Get back in that can all you silly worms!

State v. Stout
5/19/2008
2008-Ohio-2397
5th District Court of Appeals

Document QUICK LINK: View Court Published Official Document

Issues: HGN, eyeglasses, remove, ODH manual, breath test, BAC DataMaster Manual, ALS

Case Summary Overview:
D was involved in a 1 car crash after swerving to miss a deer in the roadway. When the cops showed up, they allegedly smelled alcohol, arrested D, and she ultimately was charged with 4511.19(A)(1)(a)& (d) . Counsel filed a MTS and the trial court overruled the MTS so a NC plea was entered and this appeal followed. HELD: The 5th District Court of Appeals held that the failure to remove a person’s eyeglasses does NOT meet substantial compliance with NHTSA. Then, having thrown the Defendant the proverbial “bone,” they held that the ODH training manual and the Operational Manual for the breath instrument are just “ancillary” manuals and compliance with them is NOT necessary! Yes, this flies in the face of State v. Schlegel, 2004-Ohio-2535, however, in rounding up that can of worms, they find a way to distinguish the instant matter from Schlegel. There is also an issue with the 2255 and the time frame in which it was filed, but the 5th ultimately says it was filed as soon as the court was open, and that’s OK, even if beyond the statutorily required time.

State v. Stone
6/2/2008
2008-Ohio-2615
11th District Court of Appeals

Document QUICK LINK: View Court Published Official Document

Issues: odor of raw marijuana, continued detention, Robinette, PC to arrest

Case Summary Overview:
D was stopped for speeding (57 in a 45). During the traffic stop, the A/O smelled the odor of raw marijuana and asked D if he had any weed. D pulled a cigar out of the console that was filled with MJ. D was then placed in the cruiser while A/O searched the vehicle, locating baggies of weed in the glove box. D''s MTS was denied. A plea was entered and this appeal followed. HELD: The 11th District held that based on Robinette, the continued detention was no problem.

State v. Ferry
6/2/2008
2008-Ohio-2616
11th District Court of Appeals

Document QUICK LINK: View Court Published Official Document

Issues: headlights required, sunrise to sunset,

Case Summary Overview:
D was stopped at 20:21 for not having his headlights on. The sunset was at 20:02. He was subsequently charged with A1a, A1d (2nd offense)and 4513.03 (headlights required). He filed an MTS urging the court to find 4513.03 vague. The trial court denied the MTS. HELD: The 11th District held that it headlights required statute is NOT vague and even if it were, it would not invoke the exclusionary rule.

State v. Scott
6/6/2008
2008-Ohio-2725
2nd District Court of Appeals

Document QUICK LINK: View Court Published Official Document

Issues: PC to arrest, headlights, marked lanes

Case Summary Overview:
D was observed driving with no headlights and committing 1 marked lane violation for drifting over the center line. Only the HGN and finger to nose were administered and he was then arrested and tested over the limit. The trial court suppressed the HGN but overruled all other aspects of the MTS. A NC plea was entered and this appeal followed. HELD: The 2nd District held that admission of 3 beers over a number of hours, moderate odor and the single marked lane violation was NOT sufficient PC to arrest. The court acknowledged that the headlight issue was apparently a malfunction of the vehicle and it was reasonable that it was not noticed by D due to the high traffic and commericial area that he was driving in. The Court says this case is similar to its'' decisions in Spillers and Beagle. This is a great case to read and cite!

State v. Smith
6/3/2008
2008-Ohio-2680
5th District Court of Appeals

Document QUICK LINK: View Court Published Official Document

Issues: speedy trial, dismissal, refile, evid.R. 601, competency, blood, qualified technician, phlebotomist

Case Summary Overview:
D was involved in a crash and transported to the hospital. A paramedic drew blood and the cop arrvd. at hospital to "investigate" the accident. D was never advised he was under arrest because the cop was still investigating. Ultimately, an OVI charge followed. At the MTS, the cop no-showed and case was dismissed. 3 months later it was re-issued and served on D while cop was not in uniform or marked cruiser. A NC plea followed the MTS. HELD: The time between the State''s dismissal and refiling does NOT count toward speedy trial. The fact that cop was not in uniform or marked cruiser when he served the re-filing on D does not render him incompetent to testify since he was in uniform during the date of investigation and original citation. The paramedic was authorized by 4511.19(D) because he had been properly trained and had taken his test for certification, he just didn''t have the certificate issued yet. Statements made by D at hospital were OK beacuse it was just an "investigation" at that point and Miranda wasn''t required.

State v. Wilson
6/9/2008
2008-Ohio-2742
3rd District Court of Appeals

Document QUICK LINK: View Court Published Official Document

Issues: PC to arrest, continued detention

Case Summary Overview:
D was stopped for speeding and other erratic driving. Cop noticed furtive movements as he approached the vehicle, saw extreme nervousness by D, and "chore boy," a copper cleaning product used to pack crack and meth pipes. He had D exit, cuffed her and placed her in his cruiser while he searched her car. Finding all kinds of crack paraphernalia, D was placed U/A and charged with 4511.19, speed, and paraphernalia. D''s MTS was overruled! HELD: Based on the super trooper''s training and experience and his observations of the driving and D''s nervousness and the chore boy, the officer had the right to extend the detention while he searched her vehicle. Placing her in his cruiser and in cuffs was not an arrest! This case should be read as it can easily be distinguished based on all of the evidence of drug use.

State v. Key
6/9/2008
2008-Ohio-2759
11th District Court of Appeals

Document QUICK LINK: View Court Published Official Document

Issues: PC to arrest,

Case Summary Overview:
The 11th District relied on its'' decision in State v. Evans (1998), 127 Ohio App.3d 56 which listed 11 factors to consider in determining whether the officer was justified in the further detention to administer field tests.

State v. Starcovic
6/9/2008
2008-Ohio-2758
11th District Court of Appeals

Document QUICK LINK: View Court Published Official Document

Issues: continued detention, reason to believe

Case Summary Overview:
D was driving a dump truck and A/O observed the license plate to be covered in a tar-like material that obstructed the plate number and sticker. He stopped the vehicle and during the initial stop, asked for the bill of lading and other docs relating to the weight of the load. After using a "cheat sheet" to inspect the tires, he asked D to follow him to the station to be weighed. While weighing the vehicle, a/o noticed odor of alcohol. D ultimately blew a 0.08, was cited under 4511.19 and the CDL OVI along with a weight violation. The trial court denied his MTS. HELD: The 11th District REVERSED!!!! In reviewing the matter, the 11th Held that there were no articulable facts suggest the vehicle was overweight. Specficially, they stated: "Although we may surmise that the officer observed some indicia of an overload in his unconscious, we cannot read his mind and draw that conclusion. The facts of this case dangle perilously close to painting a picture of a simple “fishing expedition” that proved fruitful."

State v. Williams
6/11/2008

1st District Court of Appeals

Document QUICK LINK: View Court Published Official Document

Issues: marijuana and alcohol, DRE, drug recognition expert

Case Summary Overview:
The State offered the testimony of a Sgt. Denney as an expert witness to testify regarding the effects of marijuana alone or combined with alcohol. Sgt. Denney had recently completed a DRE (Drug Recognition Expert) program. The trial court recognized him as an expert and permitted his testimony over objections. The issue of Sgt. Denney being an expert was the only assignment of error. HELD: Since D pointed to no specific testimony he was objecting to, there really is no issue. Also, his training and experience were sufficient to be identified as an expert.

State v. Thacker
6/9/2008
2008-Ohio-2746
5th District Court of Appeals

Document QUICK LINK: View Court Published Official Document

Issues: retroactive, 3 hour time limit, blood, breath, urine

Case Summary Overview:
The trial court suppressed a breath test because it was not collected within the 2 hours then required. The State appealed arguing that the "new" statute shold have been retroactively applied, thereby giving the cops 3 hrs. to collect the breath. HELD: The 5th District AFFIRMED and held that the statute expanding the time to collect a chemical test is not retroactively applied.

State v. Browning
6/16/2008
2008-Ohio-2905
12th District Court of Appeals

Document QUICK LINK: View Court Published Official Document

Issues: instrument check, breath test, operational manual

Case Summary Overview:
D challenged the admissiblity of the breath test during a MTS. The trial court granted the motion since the officer who performed the instrument check did not follow the procedures set forth in the operational manual - despite his own admission that he "has NO basis to perform instrument checks other than as instructed in the manual provided by the manufacturer." The State appealed! HELD: What difference does it make if they didn''t follow the proper procedure? As long as the manual was in the room at the time they omitted 2 steps required by the manual, it''s OKEY DOKEY!!!! Does it really make sense that the manual is required to be in the room if no one has to follow it???? Or is it just for decoration so the cops LOOK like they know what they are doing? Guess this one will have to be won the old fashion way, with 8 in the box, since it was reversed and remanded!

State v. Mundy
6/18/2008

1st District Court of Appeals

Document QUICK LINK: View Court Published Official Document

Issues: continued detention, search, unlawful search

Case Summary Overview:
D was stopped for not having a front lic. plate. He produced a valid license that returned NO OPEN WARRANTS. He was given a warning for the front plate issue and then cops asked if he had any drugs in his car or on his person, to which he replied NO. Cops then asked to search and were allegedly given consent by D. A small amount of cocaine was located in the rear seat area and a small bag of weed was found in D''s pocket. The trial court denied the MTS on the search HELD: This was an unreasonable continued detention of D. Since he was not told that he was free to leave, it didn''t matter whether he consented to the search. REVERSED!

State v. Stoyer
6/18/2008
2008-Ohio-2964
9th District Court of Appeals

Document QUICK LINK: View Court Published Official Document

Issues: prior convictions, uncounseled, motion in limine, preservation of the record

Case Summary Overview:
D was charged with 4/6 Felony OVI. She filed a motion in limine to challenge prior uncounseled plea(s). The motion was not well taken and she entered a NC plea and appealed. HELD: The 9th District held "this Court reviews the trial record, not the motion in limine ruling, to determine whether an appellant preserved a contested issue by entering a timely objection at trial. In this case, however, Stoyer never had a trial."

State v. Gilley
7/9/2008

1st District Court of Appeals

Document QUICK LINK: View Court Published Official Document

Issues: video, destruction of evidence, exculpatory, useful, bad faith

Case Summary Overview:
D was arrested for OVI and filed a motion to preserve 7 days later. The PD''s in-station video system over-writes the video automatically every 8 days (minus 2 minutes) and it did so in this case because they were not aware of the motion to preserve. The trial court denied the mts/mtd. HELD: The 1st District held that since there was no showing that the tape was exculpatory, although it was probably useful, the burden was on Defendant to show bad faith. And since D failed to meet his burden of showing bad faith, too bad, so sad, no violation of your Rights! This commentator suggests that if D had taken a swing at the A/O they would have made CERTAIN not to destroy the evidence. Why is it that the wholesale destruction of ANY evidence, useful to D or not, is given the stamp of approval by the OHIO Courts?

State v. Turner
8/4/2008
2008-Ohio-3898
11th District Court of Appeals

Document QUICK LINK: View Court Published Official Document

Issues: right to counsel, breath test, 2935.20, 2921.45

Case Summary Overview:
D was arrested for OVI and upon being asked to take the breath test at the station, he requested to call his parents so he could get an attorney and have them present. D was not given the opportunity to call his parents/attorney until after he blew. 17. His MTS and Motions in Limine to exclude the breath were denied by the trial court. The State dismissed the A1a and D was convicted by the court after trial on the A1h. HELD: The statatory violations of 2935.20 and 2921.45 do not invoke the exclusionary rule. A breath test is not a critical stage of prosecution that would invoke the 6th A. Right to Counsel. The sentence of mandatory attendance at AA meetings does not violate the Constitution''s Establishment Clause. The decision on the Est. Clause focuses on the lack of evidence in the record that the (current) AA material has religious references. This case is worth the time to read it.

State v. Tobin
8/23/2008
147 Ohio Misc.2d 108, 2008-Ohio-3466
Athens County Municipal Court

Document QUICK LINK: View Court Published Official Document

Issues: Speeding, per se, over the limits, reasonable for the conditions, 4511.21

Case Summary Overview:
This is a great MISC. decision that dissects the speeding law 4511.21. Specifically, the trial court stated: "Ohio’s speed-limit statute, R.C. 4511.21, is not a model of clarity. It contains three different types of limits: (1) Assured clear distance ahead 4511.21(A) (2) Reasonable for conditions with prima facie limits 4511.21(B) (3) Highway limits 4511.21(D) Ultimately the trial judge GRANTED D''s MTS finding that the STOP was bad! Take the time to read this as it could be very helpful in attacking a speeding stop for OVI cases!

State v. Breving
1/16/2009
2009-Ohio-144
1st District Court of Appeals

Document QUICK LINK: View Court Published Official Document

Issues: DOH, substantial compliance, refrigeration, solution

Case Summary Overview:
D was arrested for OVI and charged with A1a and A1d. At the motion to suppress, he argued that since the police drove the inst. check solution to all 5 police districts to perform instrument checks, and the solution was not refrigerated during transport, they did not substantially comply with the DOH reg. requiring refrigeration when not in use. The trial court overruled the MTS, D pleaded NC and appealed. HELD: The 1st District agreed with the trial court. This is the same facts and results as State v. Agin, also with Cincinnati PD and the 1st District court of appeals. In this case, the 1st held: "We hold that the calibration solution was “being used” in this case within the meaning of Ohio Adm.Code 3701-53-04(C) and, therefore, that refrigeration was not required during the time it took to transport the solution to all five police districts and to calibrate the different Intoxilyzer machines. The assignment of error is overruled. The judgment of the trial court is affirmed."

State v. Davenport
2/9/2009
2009-Ohio-557
12th District Court of Appeals

Document QUICK LINK: View Court Published Official Document

Issues: blood, hospital blood, medical blood, substantial compliance, aggravated vehicular homicide, 4511.19(D)(1)(a)

Case Summary Overview:
D was invovled in a head-on crash and someone died. D was taken to OSU medical center and a medical blood test revealed a BAC of .261. D was later indicted for OVI(4511.19A1a) and Agg. Veh. Homicide. D filed a MTS and the trial court found that while there was no showing of substantial compliance with the OAC, it was not going to suppress the result of the test. D entered a plea of NC and pursued this appeal (while serving a 5 yr. prison sentence). HELD: The 12th District AFFIRMED holding that the amended 4511.19D1a permits the use of hospital blood with the use of an expert even though there is not a showing of substantial compliance. What is important to take away from this decision is the fact that the statutory language is permissive, not mandatory! A court "MAY" admit.... Had the Defendant been able to show that the manner in which the blood was collected, handled or tested jeopardized the integrity of the specimen, the trial court "could" have kept it out based on it being more prejudicial than probative or that it was not "competent." Also remember that a State MUST have an expert if it is going to use hospital blood!

State v. Sutton
3/11/2009
2009-Ohio-1203
7th District Court of Appeals

Document QUICK LINK: View Court Published Official Document

Issues: video destruction

Case Summary Overview:
D was stopped and arrested for OVI on November 19. On February she requested video but it had been taped over pursuant to the OSP policy to hold videos for 30 days. Defendant filed a motion to dismiss suggesting that that "a picture is worth 1000 words." The motion was denied. HELD: The 7th District found that the tape was only potentially usefule and not materially exculpatory. There is some interesting language in this decision including a statement that: "Notably, there are no longer any suppression issues here. Thus, the fact-finder would have heard that her blood alcohol content measured .11 on the portable test and .145 on the station’s breath machine. In addition, she smelled of alcohol, she admitted drinking, and it was 1:21 a.m. after a Saturday night at a party."

State v. Kennedy
3/27/2009
2009-Ohio-1398
5th District

Document QUICK LINK: View Court Published Official Document

Issues: SFST

Case Summary Overview:
D was charged with OVI (F3) and after his motion to suppress, where the trial court stated "clearly the Prosecutor did not establish that those field sobriety tests, the HGN and the field sobriety tests, were conducted in conformity with the NHTSA standards," the trial court permitted testimony at trial. A jury granted Mr. Kennedy a right of appeal and the matter is before the 5th Dist. HELD: The 5th District starts off by stating that "Appellant did not specify in what manner the trooper had allegedly erred in conducting the tests, nor were any specific facts set forth in the motion to put the State on notice." They then go on to address the arguments. The 5th found that the trial court erred in addmitting at trial, testimony regarding the sfst''s and that the trooper was improperly permitted to testify as to conclusory results of the sfst''s. This case is definately worth reading!

State v. Linard
4/1/2009
2009-Ohio-1578
5th District Court of Appeals

Document QUICK LINK: View Court Published Official Document

Issues: instrument check, admissibility, breath test, 3701-53-04, out of range

Case Summary Overview:
Defendant was indicted on multiple counts of OVI and DUS. His MTS the results of the breath test was overruled and he entered a NC plea and appealed. HELD: The Fifth District held: "Because we find the instrument check conducted on the BAC Datamaster subsequent to Appellant''s breath test yielded unacceptable results, and because no follow-up test was performed with a different solution to determine if the machine was in proper working order, we conclude the State did not satisfy the requirements of OAC 3701-53-04(A)." REVERSED and remanded!

Briscoe v. Virginia
1/25/2010
559 U.S. ___ (2010)
Supreme Court Of The United States

Document QUICK LINK: View Court Published Official Document

Issues: confrontation clause,

Case Summary Overview:
The Supreme Court of the United States remanded this case dealing with the Confrontation Clause at trial "...for further proceedings not inconsistent with the opinion in Melendez-Diaz v. Massachusetts, 557 U. S. ___ (2009)."

State v. Whitt
8/13/2010
2010-Ohio-3761
5th District Court of Appeals

Document QUICK LINK: View Court Published Official Document

Issues: 2255, valid arrest, implied consent

Case Summary Overview:
{¶18} “‘The language of R.C. 4511.191 specifically provides that an arrest is necessary, and, throughout the additional sections accompanying this statute, reference is repeatedly made to “the person under arrest” and the “arresting officer.” It would be absurd to conclude from Form 2255 that its language is sufficient to “imply” arrest, which is then sufficient to “imply” consent to draw body fluids from this implied arrestee. The mandatory statutory language, coupled with the legislative intent behind the statute and the Risner and Bustamonte cases, leads this court to hold that a valid arrest must precede the seizure of a bodily substance, including a blood draw, and must precede an implied consent given based upon Form 2255’. Id."

State v. Kormos
7/9/2012
2012-Ohio-3128
Twelfth District Court of Appeals

Document QUICK LINK: View Court Published Official Document

Issues: dry gas control, Intoxilyzer 8000, substantial compliance

Case Summary Overview:
The trial court suppressed a breath test from the Intoxilyzer 8000 based on non-compliance with the ODH reg 3701-53-04 which requires a dry gas control before and after every subject test. The state appealed. HELD: The 12th Dist. held that a "subject test" consists of two breath samples being analized by the instrument. This case is a must read for many reasons but is a case of first impression for both the Intoxilyzer 8000 and interpretations of the regs as they apply to the 8000.


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