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Franklin County Criminal Law Casebook
Reproduced with permission from
Allen V. Adair and the Franklin County Public Defender Office

OMVI (029)

Also see Traffic Offenses; Investigative Detention.

 

In general

Sobriety checkpoints

Operation

Detention issues

Field sobriety testing

Probable cause for arrest

Implied consent

Administrative license suspensions

Events at the police station

Initial appearance

Motions practice

Test results, Compliance with Dept. of Health Regulations, In general

Test results, Compliance with Dept. of Health Regulations, Supervision by a senior operator

Test results, Compliance with Dept. of Health Regulations, Calibration

Test results, Compliance with Dept. of Health Regulations, Blood tests

Test results, Compliance with Dept. of Health Regulations, Urine tests

Test results, Compliance with Dept. of Health Regulations, Observation requirements

Test results, Compliance with Dept. of Health Regulations, RFI cases

Test results, admissibility of records

Test results, other issues

Driving under the influence of drugs

Sufficiency of proof

Miranda issues

Other trial issues

Sentencing issues, misdemeanor cases

Sentencing issues, felony cases

License suspensions

Forfeiture and other financial issues

 

R.C. 4511.19 -- Revised Code offense.

R.C. 4511.191 -- Implied consent.

R.C. 4511.195 -- Seizure and detention of vehicle.

R.C. 4511.196 -- Initial appearance, initial suspension of license.

R.C. 4511.99 -- Revised Code Penalties.

C.C. 2133.01 -- Columbus City Code offense.

C.C. 2133.99 -- Columbus City Code penalties.

R.C. 4507.16 -- Suspension or revocation of driver's license.

In general

State v. Lynch, 145 Ohio Misc. 2d 84, 2008-Ohio-307 – Trial court judge refuses to expunge records where the defendant refused a test and was subsequently acquitted at trial. In his view, he may not exclude DMV records from the expungement order, though this would have been acceptable to the defendant. The judge wants those records to include the refusal here to be counted when determining the length of the suspension in the event of a future refusal. Then the opinion turns into a rant against reckless operation pleas in OMVI cases

State v. Campbell, 100 Ohio St. 3d 361, 2003-Ohio-6804 -- Syllabus: "The amendment of a criminal charge from one subparagraph of R.C. 4511.19(A) to another subparagraph of the same subsection does not change the name and identity of the charged offense within the meaning of Crim. R. 7(D)." Officer checked breath text box on ticket, but cited portion of the statute relating to blood tests.

State v. Watkins, 99 Ohio St. 3d 12, 2003-Ohio-2419 -- The Traffic Rules apply to non-felony OMVI cases. ¶ 28: "Crim. R. 11(C) sets forth how a judge should explain those rights to a defendant. However, there are no such constitutionally mandated informational requirements for defendants charged with misdemeanors. The protections that the Criminal Rules provide to felony defendants should not be read into the Ohio Traffic Rules, which deal only with misdemeanor offenses." Syllabus: "When a defendant charged with a petty misdemeanor traffic offense pleads guilty or no contest, the trial court complies with Traf. R. 10(D) by informing the defendant of the information contained in Traf. R. 10(B)."

State v. Oklata, 156 Ohio App. 3d 123, 2004-Ohio-569 -- Though State v. Watkins, 99 Ohio St. 3d 12, 2003-Ohio-2419 may reduce the court's obligations in taking a no contest plea in a traffic case, failure to inform the defendant of the effect of his no contest plea, as outlined in Traffic Rule 10(B)(2), requires reversal.

State v. Campbell, 150 Ohio App. 3d 90, 2002-Ohio-6064 -- (1) Amendment of ticket from blood to breath subsection did not change the name or identity of the offense charged. (2) It was not necessary to serve the defendant with a copy of the amended complaint. (3) Calculation of time for speedy trial must recognize periods during which time was tolled prior to amendment.

State v. Tamburin (2001), 145 Ohio App. 3d 774 -- Fourth offense OMVI was no billed when a witness failed to appear before the grand jury. Charge was refiled in municipal court, alleging four convictions, but not that the offense was a felony. Court had jurisdiction to try the case as a misdemeanor.

State v. Campbell (1999), 132 Ohio App. 3d 880 -- Since third offense OMVI carries a potential sentence in excess of six months, it is a serious offense for purposes of Crim. R. 44, and waiver of the right to counsel must be in writing.

State v. O'Neill (2000), 140 Ohio App. 3d 48 -- A prior uncounselled OMVI conviction may not be used as one of the prior convictions forming the basis for a felony OMVI prosecution. This includes prior convictions where the mandatory jail time was served in the form of pretrial detention for which jail time credit was given.

State v. Brooke, 113 Ohio St. 3d 199, 2007-Ohio-1533 -- Syllabus: "(1) For purposes of penalty enhancement in later convictions under R.C. 4511.19, when the defendant presents a prima facie showing that prior convictions were unconstitutional because they were uncounselled and resulted in confinement, the burden shifts to the state to provide that the right to counsel was properly waived. (2) Waiver of counsel must be made on the record in open court, and in cases involving serious offenses where the penalty includes confinement for more than six months, the waiver must also be in writing and filed with the court. (Crim. R. 44(C), applied.)" Case below: State v. Brooke, 165 Ohio App. 3d 409, 2005-Ohio-6161.

State v. Culberson (2001), 142 Ohio App. 3d 656 -- Felony OMVI defendant sought to suppress use of prior convictions claiming they were constitutionally infirm based on failure to comply with Crim. R. 11. Court refuses to recognize this as a basis for suppression. Only uncounselled priors may be suppressed.

State v. Webster, Hocking App. No. 04CA9, 2004-Ohio-6318 -- Three OMVI convictions entered on the same date do not rise to a fourth degree felony, but count as three priors for purposes of future prosecutions.

State v. Cleary (1986), 22 Ohio St. 3d 198, 199 -- OMVI is a strict liability statute. Also see Newark v. Lucas (1988), 40 Ohio St. 3d 100, 103; State v. Tanner (1984), 15 Ohio St. 3d 1, 6.

State v. Tanner (1984), 15 Ohio St. 3d 1 -- Per se OMVI offenses are not unconstitutionally vague or overbroad.

State v. Anderson (1989), 57 Ohio App. 3d 108 -- Headnote: "The Double Jeopardy Clauses of the United States and Ohio Constitutions forbid the prosecution of a defendant for drunk driving by a political subdivision when that defendant has already been placed in jeopardy by another political subdivision of the same state for the same offense, stemming from the same underlying course of conduct." Defendant followed highway across county line Compare State v. Smith (1991), 61 Ohio Misc. 2d 165 reaching the opposite conclusion when a state line has been crossed.

State v. Jacot (1993), 97 Ohio App. 3d 415, appeal dismissed as improvidently granted 71 Ohio St. 3d 1217 (1995) -- Per se and impaired driving violations of the OMVI statute are said to be distinct for purposes of double jeopardy as each requires proof of an additional fact the other does not. Case arises in the context of a speedy trial claim resolved in the defendant's favor. Per se charge was filed while impaired driving charge was already pending and both were continued pending determination of a motion to suppress test results. Court found time was not tolled on the impaired driving charge, which the motion did not relate to, and rejected the state's claim double jeopardy considerations required the cases be tried together. Note that if separate convictions had resulted, they would have merged under R.C. 2941.25.

Sate v. Cooney (1997), 124 Ohio App. 3d 570 -- Impaired driving OMVI was filed immediately, but per se charge wasn't filed until belated receipt of test results. Time began to run on both charges from the date the impaired driving charge was filed. Also see Columbus v. Douglas (December 31, 1987), Franklin County App. No. 87AP-39, unreported (1987 Opinions 3436).

State v. Long (1990), 70 Ohio App. 810 -- Defendant's application to a diversion program available to those charged with OMVI extended time within which she had to be brought to trial.

Akron v. Jaramillo (1994), 97 Ohio App. 3d 51 -- Trial judge was without authority to amend an OMVI complaint to charge reckless operation over the objection of the prosecutor. Amendment changed the name and identity of the crime charged.

Springfield Township v. Quicci (1994), 97 Ohio App. 3d 664 -- Uniform Traffic Ticket was insufficient to state the offense of OMVI where the only information which might identify the offense was that there was a B.A.C. test, the result was "209%" and a checkmark in a box next to Ohio R.C., but no designation of a statute number.

Akron v. Kirby (1996), 113 Ohio App. 3d 452 -- Court rejects various constitutional challenges, finding: (1) ALS suspension does not violate procedural due process. (2) Immediate seizure of repeat offender's vehicle without a hearing did not violate the Due Process Clause. (3) Mandatory prison time, greater impact on rural residents and differentiation between rental and owned vehicles does not violate equal protection. (4) Mandatory imprisonment and forfeiture do not violate the Eighth Amendment's ban on disproportionate sentences and excessive fines. (5) Increased penalties based on prior record does not pose an ex post facto or retroactive law violation. Also see State v. Ashburn (1996), 113 Ohio App. 3d 469; State v. Campbell (1996), 115 Ohio App. 3d 319.

State v. Sandlin (1999), 86 Ohio St. 3d 165, 168 -- "...(A) conviction of DUI always bars expungement of the record of conviction for another criminal offense."

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Sobriety Checkpoints

State v. Williams, 181 Ohio App. 3d 472, 2009-Ohio-970 – Motorist turned out of a restaurant parking lot into the approach to a sobriety checkpoint. He missed the warning sign an officer testified was placed forty feet beyond where he made the turn. ¶12: "There is no requirement that each driver must see the warning sign for a checkpoint to be constitutional." Otherwise the checkpoint comported with the requirements of State v. Goines (1984), 16 Ohio App. 3d 168 and State v. Hilleshiem (Iowa 1980). 291 N.W. 2d 314, 318.

City of Indianapolis v. Edmond (2000), 121 S.Ct. 447 -- Indianapolis drug interdiction checkpoints found to violate the Fourth Amendment.

Michigan Dept. of State Police v. Sitz (1990), 496 U.S. 444 --Michigan highway sobriety checkpoint operation found not to violate the Fourth Amendment. For an Ohio case finding a Highway Patrol sobriety checkpoint to violate the Fourth Amendment see State v. Blackburn (1993), 63 Ohio Misc. 2d 211, affirmed (March 23, 1994), Clark Co. App. No. 2084, unreported. For cases finding checkpoints to have complied with constitutional standards, see State v. Eggleston (1996), 109 Ohio App. 3d 217; State v. Bauer (1994), 99 Ohio App. 3d 505.

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Operation

Columbus v. Freeman, 181 Ohio App. 3d 320, 2009-Ohio-1046 – In a driving under suspension prosecution the jury was instructed that the defendant grabbing the wheel of the car his wife was driving "may" constitute operation. Court follows State v. Wallace, 166 Ohio App. 3d 845, 2006-Ohio-2477 and finds grabbing the wheel is operation. See dissent. Use of "may" in instruction did not amount to a directed verdict on the element of operation.

State v. Wallace, 166 Ohio App. 3d 845, 2006-Ohio-2477 -- Defendant, while arguing with her husband, grabbed the wheel causing an accident. Both were charged with OMVI. Wife's act constituted operation under the present statutory definition including "cause or to have caused the movement of a vehicle."

State v. Wright (2000), 137 Ohio App. 3d 88 -- Operation was not proven where the defendant was seen standing on the driver's side of the vehicle, with one foot on the ground and the other in the car, the keys in the ignition, the headlights on, but the motor not running.

State v. Gill (1994), 70 Ohio St. 3d 150 -- Syllabus: "A person who is in the driver's seat of a motor vehicle with the ignition key in the ignition and who, in his or her body has a prohibited concentration of alcohol, is 'operating' the vehicle within the meaning of R.C. 4511.19 whether or not the engine of the vehicle is running. (State v. Cleary [1986], 22 Ohio St. 3d 198...State v. McGlone [1991], 59 Ohio St. 3d 122...applied and followed.)" Also see State v. Jenkins (1991), 75 Ohio App. 3d 63 (claimed that positions were switched because actual driver did not have a license). For criticism of the court's interpretation of the word "operate," see State v. Lewis (1999), 131 Ohio App. 3d 229, 236-237.

Columbus v. Seabolt (1992), 79 Ohio App. 3d 234 -- Operation was not proven where defendant was behind the wheel of a truck which had been stuck in the mud for an unknown period of time, even though the engine was running. Also see State v. Mackie (1998), 128 Ohio App. 3d 167 (snow bank).

State v. Barger (1992), 78 Ohio App. 3d 451 -- Operation found where defendant was seen throwing up out of the driver's window of a stationary truck and turned the headlights off when the officer approached. Keys were not in the ignition, but were in her possession.

State v. Kincaid (1992), 83 Ohio App. 3d 341, 346 -- "...(I)f a person is drunk, asleep in a motor vehicle, with no key in the ignition, and there is no evidence of any conduct which might be included within the broad category of operation, he is not guilty of drunk driving." Followed: State v. Shrader (1997), 118 Ohio App. 3d 221; State v. Long (1998), 127 Ohio App. 3d 328.

State v. Telakowicz (1991), 61 Ohio Misc. 2d 499 -- Defendant was not operating truck where officer came upon him asleep behind the wheel and parked in a driveway, with the motor off and the key on the seat, even though the truck rolled five feet backwards after the defendant stepped on the clutch after the officer got his attention. Opinion discusses numerous other cases on operation.

State v. Turk (1990), 70 Ohio App. 3d 224 -- Defendant was operating where he was found asleep in the front seat with the motor running, even though his feet were under the wheel.

State v. Riley (January 20, 1994), Franklin Co. App. Nos. 93AP-518, 537, unreported (1994 Opinions 91) -- Operation found where defendant was asleep, with the keys in his hand, behind the wheel of a truck, which had not been seen parked in the same location a short time earlier. Also see State v. Lewis (1999), 131 Ohio App. 3d 229 (hood warn, defendant said he had recently driven from a nearby town).

State v. Vanderkooi (1992), 82 Ohio App. 3d 173 -- Operation found where defendant was in front seat attempting to insert the wrong key into the ignition and actual key was within reach on the back seat.

State v. Grubb (1993), 82 Ohio App. 3d 187 -- Driveway giving access to the Ohio State student union was not a public street or highway as university reserved right to prohibit or limit use of driveway by the general public.

State v. Cole (1992), 62 Ohio Misc. 2d 70 -- Coasting on a Harley with a failed electrical system was operation.

State v. Keeton (1991), 74 Ohio App. 3d 817 -- (1) Steering while car was towed from ditch was operation. (2) Proof that the other person in car didn't have a license would have properly been admissible to support defendant's claim he was trying to shield his wife from being charged with no ops.

State v. Blanton (1997), 121 Ohio App. 3d 162 -- Car overheated. While driver went for water, defendant and another passenger had sex, then fell asleep in the front seat. Defendant was closest to the wheel. OMVI conviction affirmed.

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Detention issues

Also see vehicle related headings under Investigative Detention and Informants.

State v. Holnapy, 194 Ohio App. 3d 444, 2011-Ohio-2995 – Bystander saw defendant strike a parking lot post twice, then stagger away from the car. He called the police, identified himself, and passed the information along. Officers found the defendant, and drove him back to the parking lot to be ID’d. This did not constitute an arrest. Tip, investigation and refusal to take field sobriety tests amount to probable cause for arrest for OVI.

State v. Frady (2001), 142 Ohio App. 3d 776 -- Erratic driving warranting a citation justified initial stop. Subject's actions upon complying with request to step out of car warranted continued detention for administration of field sobriety tests. Officer was not obliged to give Miranda warnings because the defendant was not in custody prior to arrest.

State v. Ramsey (September 30, 1990), Franklin Co. App. Nos. 89AP-1298 and 1299, unreported (1990 Opinions 3989) -- Tip came from a caller who left name and reported possible drunk driver. Officers followed car but saw no indicia of impaired operation, but stopped car anyway. Detention found unlawful. Illinois v. Gates (1983), 462 U.S. 213, applied. Compare Beachwood v. Smoleny (1991), 74 Ohio App. 3d 756 which appears improperly decided and offers little discussion. Also see State v. Sheeran (1995), 72 Ohio Misc. 2d 58. Compare State v. English (1993), 85 Ohio App. 3d 471.

State v. Stolich (1995), 103 Ohio App. 3d 349 -- Police investigating car in park late at night arrested man on outstanding warrants, but told woman she was free to leave. She was stopped for OMVI later on. Court distinguishes being allowed to leave from being ordered to do so and affirms OMVI conviction.

State v. Cooper (1997), 120 Ohio App. 3d 416 -- Report of person sleeping in a car parked in the lot of a welding company warranted investigative detention, but mere fact that the occupant appeared drunk, without specific indicia or field testing, did not establish probable cause for arrest.

Columbus v. Lewis (1991), 77 Ohio App. 3d 356 -- Warrantless entry of house unidentified witnesses said had been entered by driver of car involved in an accident was illegal. Also see Elyria v. Tress (1991), 73 Ohio App. 3d 5. Compare State v. Rouse (1988), 53 Ohio App. 3d 48 where driver entered house after officer had told him and others to stay put.

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Field sobriety testing

State v. Syx, 190 Ohio App. 3d 845, 2010-Ohio-5880 – Court sustained motion to suppress testimony concerning field sobriety testing because the officer had no training. Court interposes suppression to validate limitation of cross regarding training. Officer was allowed to testify about the defendant’s indicia of intoxication based on what he observed.

State v. Bish, 191 Ohio App. 3d 661, 2010-Ohio-6604 -- ¶16-23: State claimed the form motion used by the defense was insufficient to shift to the prosecution the burden of demonstrating compliance with standards for field sobriety testing. The memo supporting the motion to suppress gave the name of another defendant in the caption, but individual claims from the template had been checked. Motion was sufficient to shift burden. ¶24-31: While the state did not necessarily have to introduce the NHTSA manual, it did have to introduce some evidence concerning standards for field sobriety testing. It failed to do so. Test results were properly suppressed. ¶32-45: With respect to introduction of breathalyzer results, the motion again was adequate, but the state did not have to introduce evidence concerning relevant OAC provisions. ¶47-53: Because speeding and failure to signal justified stop, and other factors justified OMVI arrest, conviction stands.

State v. Derov, 176 Ohio App. 3d 43, 2008-Ohio-1672 – Motion to suppress for lack of probable cause should have been granted. The results of testing with a portable breath analyzer are not reliable in establishing probable cause. The Highway Patrol officer did not devote sufficient time to the administration of the horizontal gaze nystagmus test. The walk and turn test was not properly administered and scored. While the officer detected the odor of alcohol and red glassy eyes, he did not observe impaired driving or other signs of intoxication.

State v. Henry, 191 Ohio App. 3d 151, 2010-Ohio-5171, ¶33-36 – Court notes split among the districts concerning admissibility of portable breath test results, but here such results were among several indicia forming probable cause for arrest. Admissibility at a suppression hearing was not prejudicial.

State v. Grizovic, 177 Ohio App. 3d 161, 2008-Ohio-3162 – At trial the court improperly admitted officer‘s testimony concerning statistical probability that the defendant‘s BAC was above .10 based on "clues" detected during field sobriety testing. Additional expert testimony interpreting the effect of BAC on the ability to drive was required.

State v. Homan (2000), 89 Ohio St. 3d 421 -- Paragraph one of the syllabus: "In order for the results of a field sobriety test to serve as evidence of probable cause to arrest, the police must have administered the test in strict compliance with standardized testing procedures."Also see <State v. Pelfrey 2nd Dist App. No. 2002-1-CA-127, 2002-Ohio-3492>; State v. Wieland, 127 Ohio Misc. 2d 138, 2004-Ohio-2240.

State v. Brown, 166 Ohio App. 3d 638, 2006-Ohio-1172 -- Motion to suppress was sufficiently specific to alert the prosecutor of the burden to proves field sobriety tests were conducted in a standardized manner as provided by the NHTSA.  Officer testified as to which tests were conducted and how they were administered, but did not introduce the manual or otherwise establish they were conducted in the approved manner. Without the tests, there was not probable cause for the arrest.  Also see State v. Ryan, 5th Dist. No. 02-CA-0095, 2003-Ohio-2803; State v. Nickelson (July 20, 2001), 6th Dist No. H-00-036.

State v. Smith, 162 Ohio App. 3d 1, 2005-Ohio-2103 -- Motion to suppress based on Homan and the lack of probable cause faulted for failing to address the issue with specificity.  Motion should have made specific claims with respect to the testing and identified related sections in the NHTSA manual.

State v. Boczar, 113 Ohio St. 3d 148, 2007-Ohio-1251 -- Amendment of R.C. 4511.19(D)(4)(b) to abrogate State v. Homan (2000), 89 Ohio St. 3d 421 by only requiring substantial compliance with NHTSA standards for field sobriety testing is constitutional. The court rejects the distinction between gaze nystagmus testing and other tests drawn in State v. Robinson, 160 Ohio App. 3d 802, 2005-Ohio-2280 and State v. Hall, 163 Ohio App. 3d 90, 2005-Ohio-4271, ¶20-23.

State v. Robinson, 160 Ohio App. 3d 802, 2005-Ohio-2280 -- The opinion addresses the reach and constitutionality of post-Homan amendment of R.C. 4511.19 to require only substantial compliance with standards for administering field sobriety tests.  Applying Article IV, Section 5 of the Ohio Constitution and Evidence Rule 702, this amendment is only of limited benefit to the state, in particular with regard to the horizontal gaze nystagmus test.

State v. Hall, 163 Ohio App. 3d 90, 2005-Ohio-4271, ¶20-23 -- R.C. 4511.19(D) is unconstitutional with respect to the horizontal gaze nystagmus test, but not in its entirety. But as a practical matter, its requirement of only substantial compliance with the NHTSA Manual is viable only insofar as it compliments Evidence Rule 702 and Ohio Supreme Court decisions interpreting the admission of scientific, nonpsychomotor field sobriety tests.

State v. Schmitt, 101 Ohio St. 3d 79, 2004-Ohio-37 -- At trial an officer may testify as to the defendant's performance during improperly administered field sobriety testing as lay opinion. Court notes that in response to Homan R.C. 4511.19(D)(4)(b) has been amended to require only substantial compliance with standardized procedures. Syllabus: "A law enforcement officer may testify at trial regarding observations made during a defendant's performance of unscientific standardized field sobriety tests."

State v. Ritze, 154 Ohio App. 3d 133, 2003-Ohio-4580 -- Suppressed testimony concerning improperly conducted field sobriety testing does not become admissible if the defendant testifies.

State v. Kincer, Montgomery App. No. 19725, 2003-Ohio-6072 -- Though there may have been probable cause for arrest independent of improperly conducted field sobriety tests, the motion to suppress was erroneously overruled insofar as the admissibility of test results at trial.

State v. Markin, 149 Ohio App. 3d 274, 2002-Ohio-4326 -- To establish probable cause, it is not necessary to perform all three field sobriety tests in the NHTSA Manual.

State v. Walker, 149 Ohio App. 3d 296, 2002-Ohio-4362 -- An officer may use nonstandardized field sobriety tests. Defendant used a cane and was unable to perform the standardized one-leg-stand and walk-and-turn tests. Determination of probable cause must be based on the totality of the circumstances. Also see State v. Menking, Washington App. No. 02CA66, 2003-Ohio-3515 (alphabet test).

State v. Koeppel (2002), 117 Ohio Misc.2d 1 -- Court finds Homan is limited to probable cause. For purposes of admissibility of flawed test results at trial, the walk and turn test may be used, since it is little more than common sense observation. The Horizontal Gaze Nystagmus test results may not be used as that test is based on scientific theory.

State v. Durnwald, 163 Ohio App, 3d 361, 2005-Ohio-4867 -- (1) At ¶28-37: Highway Patrol officer reviewed tape and found it was clear. Instead or removing it for safekeeping, he left it in the cruiser to use up the full six hours. Cadets recorded over the portion covering the defendant's arrest. The opinion is strongly critical of the officer's actions and finds bad faith.  Remedy is suppression of the officer's testimony concerning field sobriety testing. (2) At ¶38-43: It was plain error to permit the officer to testify that the defendant refused to be tested on a portable breath test device.(3) ¶44-51: Expert was allowed to testify how reflux might affect test results, but it was error not to allow further testimony concerning the degree of impairment to be expected of a person testing at 0.22.(4) ¶58-60: Cumulative errors were not harmless.

State v. Benson, 152 Ohio App. 3d 495, 2003-Ohio-1944 -- Due process rights were violated when the tape from a cruiser mounted camera was destroyed following a discovery request. Defense maintained field sobriety testing would have been favorable.

State v. True (2000), 137 Ohio App. 3d 348 -- Trial court found officer's testimony concerning field sobriety tests unconvincing and granted motion to suppress. On cross officer dodged questions as to whether defendant passed or failed individual tests, falling back on the claim she had looked at the tests as a whole. Affirmed.

Columbus v. Anderson (1991), 74 Ohio App. 3d 768 -- Administration of field sobriety tests requires reasonable suspicion and not probable cause.

State v. Evans (1998), 127 Ohio App. 3d 56, 62-64 -- Because field sobriety tests are a greater invasion of an individual's liberty interest than the initial stop, the request to perform these tests must be separately justified by specific, articulable facts showing a reasonable basis for the request.

State v. Downey (1987), 37 Ohio App. 3d 45, 523 N.E. 2d 521 -- Case suggests distinction between grounds for continued investigative detention, during which field sobriety tests were performed, and ultimate issue of probable cause for arrest. Also see Pennsylvania v. Bruder (1988), 488 U.S. 9.

State v. Deters (1998), 128 Ohio App. 3d 329 -- River patrol took boater ashore to perform further field sobriety tests. Though officer may have been unsure whether there was probable cause for arrest at time of removal, court concludes there was. Thus the results of further sobriety testing are admissible as incident to a lawful arrest.

State v. Williams (1992), 83 Ohio App. 3d 536, 539 -- "When an officer, upon lawfully stopping an automobile driver, observes that the driver has glassy, bloodshot eyes, the odor of an alcoholic beverage on his breath, and is able to perform physical coordination tests only poorly, probable cause exists both for detention for inquiry and the subsequent arrest of that driver for driving under the influence of alcohol...and to thereafter administer a lawful BAC test..."

State v. Melvan (1992), 80 Ohio App. 3d 443 -- Defendant was stopped by two troopers, fifty-five minutes apart. Field breath test administered the first time was below the limit and the defendant was told to drive home. Test following second stop was over the limit. Double jeopardy does not apply. Opinion does discuss cases where continued driving at the direction of an officer has been advanced as a defense.

State v. Gustin (1993), 87 Ohio App. 3d 859 -- Officer did not have reasonable suspicion of criminal activity lefting administration of gaze nystagmus test where the defendant had struck a utility pole after swerving to avoid a deer, smelled of cologne but not alcohol, and did not exhibit other signs of intoxication. Record was unclear as to whether admission of consuming one beer came before or after administration of the test.

State v. Bresson (1990), 51 Ohio St. 3d 123 -- "A properly qualified officer may testify at trial regarding a driver's performance on the horizontal gaze nystagmus test as it pertains to the issues of probable cause to arrest and whether the driver was under the influence of alcohol. See R.C. 4511.19(A)(1). However, such testimony may not be admitted to show what the exact alcohol concentration level of the driver was for purposes of demonstrating a violation of R.C. 4511.19(A)(2), (3), or (4)." Also see State v. Scott (1992), 79 Ohio App. 3d 77.

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Probable cause for arrest

State v. Phoenix, 192 Ohio App. 3d 127, 2010-Ohio-6009 – Trial court properly found no probable cause for OVI arrest where: (1) Stop was for relatively minor infraction of driving without headlights. Running lights and taillights were on. Defendant had only slight difficulty turning on headlights. (2) Only a slight odor of alcohol was detected. Defendant admitted drinking and an open beer bottle was in the back seat. (3) Defendant did not exhibit slurred speech. (4) His eyes were glassy and bloodshot. (5) He had no difficulty producing his ID. (6) Performance of field sobriety tests was OK. Opinion distinguishes these facts from those in other cases where probable cause did exist.

State v. Criswell, 62 Ohio App. 3d 391, 2005-Ohio-3876 -- Driving 23 mph over the limit, a moderate odor of alcohol on the breath, bloodshot glassy eyes, admission a few beers had been consumed, and poor performance of field sobriety tests established probable cause for arrest for OMVI.

State v. Hummel, 154 Ohio App. 3d 123, 2003-Ohio-4602 -- There was probable cause to arrest an injured motorcyclist for DUI where the officer detected a strong odor of alcohol, slurred speed and glassy eyes, was told there had not been a passenger, and the circumstances of the single vehicle accident suggested impaired control.

State v. Hurley, Logan App. No. 8-03-14, 2003-Ohio-6100 -- There is no reduced standard for probable cause for drivers under 21.

State v. Connover (1985), 23 Ohio App. 3d 161 -- Probable cause found where defendant was involved in an unobserved single-car accident, police detected an odor of alcohol about his person at the hospital, his eyes were bloodshot and glassy, and the defendant admitted consuming alcoholic beverages. For other cases where probable cause was found in comparable circumstances see State v. Bakst (1986), 30 Ohio App. 3d 141; State v. Burger (1986), 33 Ohio App. 3d 231; State v. Pavo (1987), 38 Ohio App. 3d 178; State v. Tate (1987), 40 Ohio App. 3d 186; Xenia v. Manker (1984), 18 Ohio App. 3d 9; State v. Bernard (1985), 20 Ohio App. 3d 375.

State v. Taylor (1981), 3 Ohio App. 3d 197 -- "The act of speeding at a nominal excess coupled with the arresting officer's perception of the odor of alcohol, and nothing more, did not furnish probable cause to arrest the defendant for driving under the influence."

State v. Metz (1987), 37 Ohio Misc. 2d 1 -- Mere odor of alcohol does not establish probable cause.

State v. Finch (1985), 24 Ohio App. 3d 38 -- The mere appearance of drunkenness, including bloodshot eyes, slurred speech and the odor of alcohol, is not sufficient to constitute probable cause for arrest for OMVI where the officer has not witnessed erratic or unsafe driving or impaired motor function and had not instructed the person arrested to perform field sobriety tests. Also see State v. Monterrubio (1987), 37 Ohio Misc. 2d 1.

State v. Bakst (1986), 30 Ohio App. 3d 141 -- Probable cause found where the defendant was involved in a collision with another car, mistakenly pointed to the other driver's car as his own, was staggering, smelled of alcohol and was obnoxious and hard to handle according to the arresting officers.

State v. Burger (1986), 33 Ohio App. 3d 231 -- Probable cause found based on speeding, slurred speech, poor performance on field sobriety tests and admission of "too much" drinking. Also see State v. Downey (1987), 37 Ohio App. 3d 45; State v. Pavao (1987), 38 Ohio App. 3d 178.

Oregon v. Szakovits (1972), 32 Ohio St. 2d 271 -- Even though an officer does not observe the actual operation of a vehicle, he may make a warrantless arrest for OMVI, if from circumstances evident during an accident investigation, and the driver's own admissions, he can reasonably conclude that the person involved had been operating his vehicle shortly before the officer arrived. Also see State v. Ferguson (1977), 5 Ohio Ops. 3d 416; Bucyrus v. Williams (1988), 46 Ohio App. 3d 43.

State v. Medcalf (1996), 111 Ohio App. 3d 142 -- Initial arrest was supported by probable cause. Though defendant performed better on additional sobriety tests administered at the police station, test result was not subject to suppression based on lack of probable cause for arrest.

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Events at the police station

State v. Mason (1994), 99 Ohio App. 3d 165 -- OMVI arrestee called his father, who was an attorney, before taking test. Father was told by the police they would allow twenty minutes for him to contact local counsel for advice before administering test. Instead, police insisted test be taken immediately. Results should have been suppressed because due process was denied.

State v. Lloyd (1998), 126 Ohio App. 3d 95, 106-108 -- Officer waiting to administer test insisted on keeping defendant under observation while he spoke with his attorney in a corner of the room. No Sixth Amendment violation found.

Lakewood v. Waselenchuk (1994), 94 Ohio App. 3d 684 -- OMVI arrestee indicated that she thought she should talk to an attorney early in the booking process, but officers did not offer use of phone or ask name of attorney. When read the implied consent form before the test was administered, she stated "God, and I have to decide this without a lawyer?" Again no opportunity was provided to contact a lawyer. Statutory and constitutional rights to counsel were denied. Test results should have been suppressed. Compare State v. Bushey (1994), 98 Ohio App. 3d 832 where the defendant's obstreperous behavior leads court to conclude refusal was not based on the statutory right to consult with counsel.

State v. Layton (1996), 111 Ohio App. 3d 76 -- Arrestee called attorney. Arresting officer talked to attorney, and after an argument, hung up. Though R.C. 2935.20 was violated, suppression was not required.

State v. Glasscock (1996), 111 Ohio App. 3d 371 -- Court properly suppressed evidence concerning claimed refusal where defendant agreed to both field and station house breath tests which did not produce a result, or produced a result below the statutory level. Police did not check to see if mouthpiece was obstructed.

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Implied consent

R.C. 2317.02(B)(1)(b) -- Physician-patient privilege does not apply to test results concerning alcohol

concentration when relevant to a criminal offense.

R.C. 4511.191 -- Implied consent.

R.C. 4511.193 -- Seizure of license, immediate suspension.

State v. Hoover, 173 Ohio App. 3d 487, 2007-Ohio-5773 – Refusal to take a test is in effect the revocation of implied consent. Civil suspension of a driver‘s license may not present a constitutional violation, but an increased minim jail sentence does. Remedy is severance of the offending language. Reversed: State v. Hoover, 123 Ohio St. 3d 418, 2009-Ohio-4993. Syllabus: "R.C. 4511.19(A)(2) does not violate the Fourth Amendment to the United States Constitution or Section 14, Article I of the Ohio Constitution." See dissent.

State v. Henry, 191 Ohio App. 3d 151, 2010-Ohio-5171, ¶22-32 -- Defendant held a commercial driver’s license, but was not driving a commercial vehicle when arrested for OVI. Forms used by the Highway Patrol officer indicated CDL warning did not have to be given in such circumstances were in error. While this might aid the defendant in administrative proceedings it is not a basis for suppression of test results.

State v. Risner (1977), 55 Ohio App. 2d 77 -- Arrest needed to trigger implied consent provisions.

Middletown v. Newton (1998), 125 Ohio App. 3d 540 -- (1) Defendant was not under arrest and conscious when blood sample was drawn as a part of treatment at hospital, and not at the request of an officer. Test results were properly admitted pursuant to R.C. 2317.02(B)(1)(b). (2) 42 U.S.C. Sec. 290 privilege does not apply as defendant was not a patient seeking treatment for alcohol abuse.

State v. Bartschy (February 18, 1986), Franklin County App. No. 85AP-614, unreported (1986 Opinions 266) -- Defendant's consent to blood test obviates need to determine whether or not he had been placed under arrest. Also see Fairfield v. Regner (1985), 23 Ohio App. 3d 79, 84-85.

State v. Rice (1998), 129 Ohio App. 3d 91 -- Defendant was taken to hospital after crash. While writhing in pain on a gurney he was read the standard implied consent form, leading to the drawing of a blood sample. Held that arrest is a precondition for implied consent. Since he was not expressly placed under arrest, and the reading of the form doesn't constitute an implied arrest, implied consent does not validate drawing sample. Looking to the surrounding circumstances, court further concludes consent was not voluntary.

State v. Taylor (1982), 2 Ohio App. 3d 394 -- Blood may be drawn from an unconscious subject who has not been arrested.

Schmerber v. California (1966), 384 U.S. 757 -- Involuntary withdrawal of blood sample is not a denial of due process, is not contrary to the privilege against self-incrimination, is not a denial of the right to counsel and is not an unreasonable search and seizure. Also see State v. Starnes (1970), 21 Ohio St. 2d 38; Westerville v. Cunningham (1968), 15 Ohio St. 2d 121.

Maumee v. Anistik (1994), 69 Ohio St. 3d 339 -- Syllabus: "Where a person has been arrested for driving under the influence of alcohol and is requested by a police officer to submit to a chemical test of his or her breath, but he or she refuses to take the test, and the reason given for the refusal is conditional, unequivocal (sic), or a combination thereof, we approve the following jury instruction as set forth in 4 Ohio Jury Instructions (1993) 405, Section 545.25(10): 'Evidence has been introduced indicating the defendant was asked but refused to submit to a chemical test of his [or her] breath to determine the amount of alcohol in his [or her] system, for the reason of suggesting that the defendant believed he [or she] was under the influence of alcohol. If you find the defendant refused to submit to said test, you may, but are not required to, consider this evidence along with all the other facts and circumstances in evidence in deciding whether the defendant was under the influence of alcohol.'"

State v. Gray (1993), 85 Ohio App. 3d 165 -- While the court may instruct the jury that a refusal to take a test may be considered as evidence of intoxication at the time of the test, it may not go further and invade the province of the jury by instructing that the refusal was because the defendant believed he was under the influence at the time of the test. (In effect, the court eliminated any issue as to why there was a refusal.)

State v. Kutz (1993), 87 Ohio App. 3d 329, 333-335 -- Driver charged with aggravated vehicular homicide was taken to a hospital where he refused to furnish a blood specimen, though a specimen was later obtained through the use of a search warrant. Court holds that under the implied consent law, the test results could not be used in an OMVI prosecution, however since the ban on use following refusal does not mention vehicular homicide, results may be used in such a prosecution.

State v. Gottfried (1993), 86 Ohio App. 3d 106 -- Implied consent law found to apply to railroad roadbed along which the defendant was operating an ATV as there was testimony that the public used the railroad property to gain access to the RV park where the defendant was stopped.

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Administrative license suspensions

State v. Williams, Ottawa App. No. OT-03-020, 2004-Ohio-2453 -- In an evidentiary hearing to terminate an ALS, the licensee has the burden of showing by a preponderance of the evidence that the actions of the BMV were in error. Mere inability to provide an adequate breath sample does not constitute a refusal. Licensee attributed difficulty to her medical condition. Court's denial of appeal was not supported by competent credible evidence.

State v. Bachmayer, Lucas App. Nos. L-02-1017 and L-02-1034, 2002-Ohio-5904, ¶22 -- For there to be an administrative license suspension based on test results, the test must have been administered with the express consent of the defendant, or pursuant to R.C. 4511.191 following a valid arrest. If the arrest is not supported by probable cause, the court must grant the defendant's appeal of an ALS suspension.

State v. Cooney (2001), 142 Ohio App. 3d 772 -- (1) It is not unreasonable to require the appeal of an administrative license suspension be made at the time of the initial court appearance. Parties not prepared to fully proceed with the appeal at that time have the option of asking for a continuance. (2) Defect in completion of the BMV refusal form does not require dismissal of the criminal prosecution or suppression of evidence.

State v. Nowak, 151 Ohio App. 3d 652, 2003-Ohio-681 -- An administrative license suspension is a separate civil proceedings. Notice of appeal must be filed within thirty days.

State v. Gustafson (1996), 76 Ohio St. 3d 425 -- Syllabus: "(1) The Double Jeopardy Clauses of the Fifth Amendment and Section 10, Article I of the Ohio Constitution do not preclude criminal prosecution and trial of motorists for driving in violation of R.C. 4511.19 based upon, and subsequent to, the imposition of an administrative license suspension pursuant to R.C. 4511.191. (2) An administrative license suspension imposed pursuant to R.C. 4511.191, and a criminal driving-under-the-influence prosecution for violation of R.C. 4511.19, arising out of the same arrest, constitute separate proceedings for double jeopardy purposes. (3) For purposes of determining the protection afforded by the Double Jeopardy Clauses of the United States and Ohio Constitutions, an administrative license suspension imposed pursuant to R.C. 4511.191 ceases to be remedial and becomes punitive in nature to the extent the suspension continues subsequent to the adjudication and sentencing for violation of R.C. 4511.19. (4) Because an administrative license suspension loses its remedial character upon judicial adjudication and sentencing for violation of R.C. 4511.19, the Double Jeopardy Clauses of the United States and Ohio Constitutions preclude continued recognition of an administrative license suspension following judicial imposition of criminal penalties for driving while under the influence of intoxicating drugs, including alcohol. (5) A court has judicial power pursuant to Sections 1 and 4, Article IV of the Ohio Constitution to order the termination of an administrative license suspension at the time of criminal sentencing for violation of R.C. 4511.19, in that the continued recognition of the administrative license suspension would result in unconstitutional application of R.C. 4511.191 to the criminal offender."

Seven Hills v. Wankewycz (1996), 114 Ohio App. 3d 652 -- Trial court stayed OMVI sentence pending appeal, but allowed ALS to continue. Applying Gustafson, to now impose sentence would violate double jeopardy.

State v. Hochhausler (1996), 76 Ohio St. 3d 455 -- Syllabus: "(1) The administrative license suspension provisions of R.C. 4511.191 do not violate the right to procedural due process. (2) The 'no stay' provision of R.C. 4511.191(H)(1) is unconstitutional as a violation of the doctrine of separation of powers and is severable from the rest of the statute. (3) R.C. 4511.195 is unconstitutional as applied to the owner of a vehicle that has been seized and immobilized because the vehicle was being operated by a third person when that person was arrested on a drunk-driving charge."

State v. Uskert (1999), 85 Ohio St. 3d 593 -- Syllabus: "The reinstatement fee of former R.C. 4511.191(L)(2) does not violate the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution or Section 10, Article I of the Ohio Constitution."

Bryan v. Hudson (1997), 77 Ohio St. 3d 376 -- Syllabus: "For purposes of establishing a valid consent or refusal to take a breath-alcohol-concentration test in the context of an administrative license suspension pursuant to R.C. 4511.191, the notice requirement of R.C. 4511.191(C) is satisfied by reading to the arrestee the language of R.C. 4511.191(C)(2)(b) as set forth on the top portion of BMV Form 2255." Also see State v. Ballreich  (1997), 118 Ohio App. 3d 633.

Dobbins v. Ohio Bureau of Motor Vehicles (1996), 75 Ohio St. 3d 533 -- Though audiotaping of the telephone conversation between an OMVI arrestee and counsel was in violation or R.C. 2935.20, since a statutory right, and not a constitutional right, was violated, the administrative license suspension for refusing to take the test may stand.

Lexington v. Reddington (1993), 86 Ohio App. 3d 643, 645 -- "...(I)f law enforcement officers fail to comply with R.C. 2935.20 (immediate right to seek counsel upon arrest) when they arrest a person for driving while intoxicated, there can be no sanction for refusal to take test pursuant to R.C. 4511.191...Likewise, if the accused elects under threat of 'implied consent' to take the breathalyzer, the result should be excluded."

State v. Poynter (1992), 78 Ohio App. 3d 483 -- Failure by arresting officer to advise of right to petition for occupational driving privileges when reading refusal form did not render consent to take test involuntary.

State v. Henry (1994), 66 Ohio Misc. 2d 57 -- Officer may not place arrestee under automatic license suspension where a specimen for a blood test has been drawn but the test results have not been received.

State v. Gorey (1994), 68 Ohio Misc. 2d 44 -- At the hospital, motorist involved in an accident was told by an officer that he was under arrest for OMVI, but was not actually taken into custody. For purposes of the implied consent law and an administrative license suspension for refusing to furnish a blood sample, he was not under arrest and not was subject to the ALS.

Strickland v. Ohio Bureau of Motor Vehicles (1994), 92 Ohio App. 3d 755 -- BMV suspended license under the implied consent law. Defendant subsequently entered a conditional plea of guilty and entered a diversion program. Written plea did not provide for it to be withdrawn if program was not completed, but did state that plea would not be accepted and charge would be dismissed upon successful completion. Held that the Bureau was required to reinstate license.

Ohio Bureau of Motor Vehicles v. Williams (1994), 97 Ohio App. 3d 779 -- An administrative license suspension pursuant to the implied consent law is a final appealable order, and must be appealed within thirty days. An appeal following acquittal of OMVI, more than thirty days after the suspension, was not timely. Also see City of Vermillion v. McCullough (1995), 106 Ohio App. 3d 367.

State v. Mounts (1994), 96 Ohio App. 3d 324 -- An administrative license suspension is not a final appealable order. See dissent characterizing ALS as a special proceeding.

Trotwood v. Briggs (1994), 64 Ohio Misc. 2d 34 -- (1) An administrative suspension may be appealed at a time later than the initial appearance on an OMVI charge. (2) Cooperative attempts, but ultimate inability, to produce a urine sample is not a refusal.

Meadows v. Ohio Bureau of Motor Vehicles (1995), 71 Ohio Misc. 2d 3 -- Defendant was cited to appear in one court, but ticket was filed in another. ALS invalid since defendant was not arraigned within five days and thus was unable to appeal ALS.

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Initial appearance

Also see Arraignment

State v. Gibson, 144 Ohio Misc. 2d 18, 2007-Ohio-6069 – The five day requirement for an initial appearance to address ALS under R.C. 4511.191, or pretrial judicial license suspension under R.C. 4511.196, is directory rather than mandatory. But the failure to hold a hearing within five days requires termination of the ALS.

State v. Garris (1998), 128 Ohio App. 3d 126 -- At an initial appearance session the judge advised one person as to rights to appointed counsel and jury trial, telling others in the courtroom to listen carefully. Defendant was never asked if he waived counsel or wanted a jury trial. Reversed. Furthermore, since defendant was charged with repeat OMVI, a "serious offense" carrying a one-year sentence, no jury demand was required.

Mansfield v. Hout (1996), 116 Ohio App. 3d 497 -- Defendant pleaded no contest and was sentenced for a first offense OMVI. Later in the day it was discovered that he had a prior, leading to rearraignment and conviction for second offense OMVI. Since the court was misinformed as to the nature of the offense, but imposed a correct sentence, which the defendant had begun to serve, a double jeopardy violation was found.

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Motions practice

State v. Homan (2000), 89 Ohio St. 3d 421, 2000-Ohio-212 -- The filing of a motion in a pending OMVI case does not toll the speedy trial time limit for related charges filed later on.

State v. Ricciardi (1999), 135 Ohio App. 3d 155 -- The overruling of a motion to suppress evidence in an OMVI case is does not qualify as an order denying a provisional remedy and thus is not a final appealable order under revised R.C. 2505.02. See dissent.

State v. Azzouz, Greene App. No. 2003-CA-17, 2003-Ohio-5338 -- Defendant did not learn a magistrate had overruled a motion to suppress until the fourteen days for filing objections had passed. Trial court abused its discretion by not hearing objections.

State v. Taylor (1999), 135 Ohio App. 3d 634 -- Court erred by consolidating nine cases for purposes of hearing motions to suppress not firmly rooted in common questions of law or fact.

State v. Faykosh, Lucas App. No. L-01-1244, 2002-Ohio-6241 -- (1) Trial court did not abuse its discretion in refusing to admit transcript of an expert's testimony two years earlier in a different county. Transcript could have been admitted, as the Rules of Evidence don't strictly apply at suppression hearings, but nothing was offered to demonstrate the transcript reflected the expert's current views. (2) Trial court did err in admitting testimony of a state's expert concerning the validity of field sobriety tests not conducted in strict compliance with established standards. The court was obliged to comply with the holding in State v. Homan, 89 Ohio St. 3d 421, 2000-Ohio-212. (3) No error in denying the opportunity to challenge the general reliability of intoxiliyzer tests since the legislature in enacting statutes such as R.C. 4511.19 resolved the question of reliability.

State v. Williamson, Crawford App. No. 3-04-06, 2004-Ohio-3545 -- Trial court properly sustained motion in limine with respect to the defendant telling an officer he had two prior convictions for driving under the influence. Such testimony would be unduly prejudicial and does not bear on the elements of the offense. The fact a test was refused, without elaboration, is sufficient for the jury to infer guilt.

State v. Norris, Champaign App. No. 2003-CA-25, 2004-Ohio-1483 -- Trial court abused its discretion in not conducting a hearing on a post-sentencing motion to withdraw a no contest plea, where the plea was uncounselled, the defendant did not know the meaning of "OMVI," the ticket was not checked to indicate whether the offense was a per se or impaired driving violation and the test was only .0334.

Defiance v. Kretz (1991), 60 Ohio St. 3d 1 -- "A motion to suppress is a proper pretrial procedure for challenging breathalyzer test results when the defendant is charged with a violation of R.C. 4511.19(A)(3). A plea of no contest does not waive a defendant's appeal from an adverse ruling on the motion." (syllabus). The ruling on a motion to keep out test results is not in the nature of a motion in limine subject to reconsideration when the matter arises at trial.

State v. James (1980), 68 Ohio App. 2d 227 -- Effort to keep out test results based on non-compliance with Department of Health Regulations is a motion to suppress and not a motion in limine and is waived if not raised by pretrial motion.

State v. French (1995), 72 Ohio St. 3d 446 -- (1) In an OMVI prosecution pursuant to R.C. 4511.19(A)(1-4) the admissibility of chemical test results must be challenged through a pretrial motion to suppress. Failure to do so permits the prosecution to introduce test results without first laying a foundation that the test was conducted in compliance with Department of Health regulations. At p. 452: "This does not mean, however, that the defendant may not challenge the chemical test results at trial under the Rules of Evidence. Evidentiary objections challenging the competency, admissibility, relevancy, authenticity, and credibility of the chemical test results may still be raised." Impliedly overrules Whitehall v. Lee (September 30, 1993), Franklin Co. App. No. 93AP-548, unreported (1993 Opinions 4256). (2) At p. 452 and paragraph two of the syllabus: In an impaired driving prosecution, expert testimony remains necessary to explain the test result.

State v. Shindler (1994), 70 Ohio St. 3d 54 -- Syllabus: "In order to require a hearing on a motion to suppress evidence, the accused must state the motion's legal and factual bases with sufficient particularity to place the prosecutor and the court on notice of the issues to be decided. (Crim. R. 47 and Xenia v. Wallace [1988], 37 Ohio St. 3d 216...construed and followed.)" The standard motion to suppress set forth in Ohio Driving Under the Influence Law by Painter and Looker is approved, accompanied by facts pleaded in the supporting memorandum.

State v. Vega (1984), 12 Ohio St. 3d 185 -- The defense may challenge the reliability of the specific testing procedure and the qualifications of the operator, but not the scientific reliability of the methodology. Also see State v. Brockway (1981), 2 Ohio App. 3d 227.

Columbus v. Day (1985), 24 Ohio App. 3d 173 -- While the defendant may not challenge the accuracy of a legislatively determined test procedure, he may challenge the accuracy of his specific test result through the use of expert testimony, to show that under the circumstances he could not have produced the test result claimed by the prosecution. Also see Bowling Green v. Andrews (1989), 61 Ohio App. 3d 337.

State v. Gasser (1980), 5 Ohio App. 3d 217 -- State has both burden of going forward with the evidence and burden of proof on admissibility of alcohol concentration test results. See Aurora v. Kepley (1979), 60 Ohio St. 2d 73; Mentor v. Giordano (1967), 9 Ohio St. 2d 140; Cincinnati v. Sand (1975), 43 Ohio St. 2d 79 (paragraph one of the syllabus); Bowling Green v. O'Neal (1996), 113 Ohio App. 3d 880.

State v. Neuhoff (1997), 119 Ohio App. 3d 501 -- Paragraph in motion to suppress alleged RFI testing was not performed by two qualified officers. State only called one officer at hearing. Defendant faulted for not having conducted such thorough discovery as to be sufficiently specific in motion that state would have identified need to call second officer. Opinion ignores scope of discovery and timing issues and is inconsistent with cases testing complaints and indictments to the extent of absurd hypertechnicality. See dissent. Compare State v. Borgerding (1997), 119 Ohio App. 3d 632.

State v. Malen (1993), 83 Ohio App. 3d 394 -- State amended complaint to allege a per se violation instead of impaired driving. At p. 397: "...(W)here the state makes an amendment to the substance of an indictment, information, or complaint charging a defendant with a new crime, the thirty-five day time limitation contained in Crim. R. 12(C) for raising a pretrial suppression motion regarding the new charge will be tolled to the date of the amendment."

State v. Merritt (1998), 126 Ohio App. 3d 711 -- First attorney did not identify calibration issue and did not file a motion to suppress, but new counsel did and promptly sought leave to file a motion out of rule. Motion improperly denied, where failure to file a timely motion was the fault of prior counsel and the case was not set for trial for several months.

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Test results, compliance with Dept. of Health Regulations, in general

State v. O‘Neill, 175 Ohio App. 3d 402, 2008-Ohio-818, ¶34 – It is the state‘s burden to establish compliance with Department of Health standards without the assistance of the defense. Case involved vehicular homicide, with violation of the OMVI statute required as part of the proof. State‘s memo opposing defense motion to suppress focused on probable cause, not particularized shortcomings of the test procedure, so particularity claim was waived. Multiple shortcomings did not meet the standard of substantial compliance.

State v. Burnside, 100 Ohio St. 3d 152, 2003-Ohio-5372 -- Syllabus: "The state does not substantially comply with Ohio Adm. Code 3701-53-05 when it fails to use a solid anticoagulant in a blood test." See body of opinion for discussion of "substantial compliance" leading to stating at ¶34 that the term excuses only errors that are clearly de minimis.

State v. Scurti, 153 Ohio App. 3d 183, 2003-Ohio-3286 -- BAC Datamaster was taken out of service for software modifications. Issue was whether it had been reapproved by the Director of the Ohio Department of Health following modifications. Letters from the department to the company qualified for admission as public records. Letters from the company to the department did not, but met the requisites for admission as business records. CEO of the company was sufficiently qualified as an expert.

State v. Rains (1999), 135 Ohio App. 3d 547 -- Test results properly suppressed where hospital by design did not follow Department of Health Regulations, particularly since no specimen was retained by the hospital for replicate testing or obtained by the arresting officer for testing in accordance with prescribed procedures.

State v. Mayl, 106 Ohio St. 3d 207, 2005-Ohio-4629 -- Syllabus: "When results of blood-alcohol tests are challenged in an aggravated-vehicular-homicide prosecution that depends upon proof of an R.C. 4511.19(A) violation, the state must show substantial compliance with R.C. 4511.19(D)(1) and Ohio Adm. Code Chapter 3701-53 before the test results are admissible.(2) When a blood-alcohol test is not requested by law enforcement but is administered in connection with medical treatment by qualified medical personnel and analyzed in an accredited laboratory, the state must show substantial compliance with R.C. 4511.19(D)(1) and Ohio Adm. Code Chapter 3701-53 before the test results are admissible in a prosecution depending upon proof of an R.C. 4511.19(A) violation." State v. Mayl, 154 Ohio App. 3d 717, 2003-Ohio-5097, affirmed.

Cincinnati v. Sand (1975), 43 Ohio St. 2d 79 -- "The results of a Breathalyzer test, administered pursuant to R.C. 4511.19, may only be admitted in evidence upon the affirmative establishment of facts supporting the following conditions: (a) The bodily substance must be withdrawn within two hours of the time of such alleged violation. (b) Such bodily substance shall be analyzed in accordance with methods approved by the Director of Health. (c) The analyses shall be conducted by qualified individuals holding permits issued by the Director of Health pursuant to R.C. 3701.143." (paragraph two of the syllabus)

State v. Plummer (1986), 22 Ohio St. 3d 292 -- The admissibility of test results as to alcohol concentration turns on substantial compliance with Ohio Department of Health regulations set forth in Ohio Administrative Code Chapter 3701-53. Also see State v. Dickerson (1986), 25 Ohio St. 3d 64, 66; Mentor v. Giordano (1967), 9 Ohio St. 2d 140, 146; State v. Chase (1991), 74 Ohio App. 3d 15.

State v. Woodring (1989), 63 Ohio App. 3d 79 -- The rules of evidence do not apply with full force at a hearing on the preliminary question whether alcohol concentration test results will be admitted in an OMVI prosecution. While the rules may not impose a per se bar, the court is not required to admit all offered testimony. Also see United States v. Matlock (1974), 415 U.S. 164, 172.

State v. Williams (1997), 119 Ohio App. 3d 512, 516 -- Trial court held to have erroneously granted motion to suppress based on findings by other courts with respect to a solution used for calibration of breath testing machine: "A trial court is free to rely on the logic of courts outside its appellate district in rendering a decision. However, other such decisions are merely persuasive in rendering a decision. Although not technically judicial notice, the trial court accepted the factual findings of other courts outside its appellate district. A trial court can only take notice of its own factual findings, based on the evidence before the court until appropriate precedent has been established within its own district or by the Supreme Court of Ohio. Otherwise, such factual findings are insufficient as a matter of law."

Newark v. Lucas (1988), 40 Ohio St. 3d 100 -- In a per se OMVI prosecution, bodily substance test results are inadmissible if drawn more that two hours after the time of the incident. In an impaired driving prosecution, test results, accompanied by expert testimony, are admissible even if the sample was drawn more than two hours after the time of the offense.

State v. Steele (1977), 52 Ohio St. 2d 187, 192 -- Brief lapses during the required twenty-minute observation period before a breath test is administered may not render test result inadmissible. Also see State v. Trill (1991), 66 Ohio App. 3d 622 (defendant managed to put a stone in her mouth unobserved but didn't eat or drink); State v. Adams (1992), 73 Ohio App. 3d 735.

State v. Schindler (1993), 68 Ohio Misc. 2d 16, 20 -- "The court finds that exposure to passive smoke within the twenty-minute period prior to the administration of the breathalyzer test does not invalidate the test result."

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Test results, compliance with Dept. of Health Regulations, Supervision by a senior operator

State v. O’Dell, 164 Ohio Misc. 2d 36, 2011-Ohio-3946 – BAC Datamaster test was administered by Highway Patrol Officer who held a senior operator’s permit. Renewal requires either a refresher course or review of self-study materials. Officer had done neither. Officer was not qualified to renew permit. Test result suppressed.

Dublin v. Young (1996), 75 Ohio St 3d 472 -- Syllabus: "Under Ohio Adm. Code 3701-53-07(C) and former Ohio Adm. Code 3701-53-07(B) a senior operator is not required to check the performance of an operator with respect to the use of a breath test." Reverses court of appeals, which had held a test is not performed "under the direction of a senior operator" where the senior operator is available by phone in the event assistance is needed, but does not visit the premises to "occasionally check the performance of the operators."

State v. Lambert (1991), 71 Ohio App. 3d 590 -- Test results should have been suppressed when it was not proven that the operator was under the required supervision of a senior operator.

Dayton v. Dabney (1994), 99 Ohio App. 3d 32 -- Supervision by a senior operator developed into an issue during suppression hearing, though it had not been raised by motion. Error for court to decide issue on supplemental memoranda without allowing parties to present additional evidence on the issue of supervision.

State v. Mock (1993), 85 Ohio App. 3d 332 -- Senior operator's permit, though not self-authenticating, may be authenticated through testimony of other than the person so qualified.

State v. Bayer (1991), 72 Ohio App. 3d 190 -- Test results should have been suppressed where operator only produced an expired certificate.

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Test results, compliance with Dept. of Health Regulations, Calibration

State v. Henry, 191 Ohio App. 3d 151, 2010-Ohio-5171, ¶12-21 – Officer who tested Datamaster did not keep test result slip when calibration solutions were changed following an inaccurate test.

State v. Yeaples, 180 Ohio App. 3d 720, 2009-Ohio-184 – Failure to present any evidence concerning refrigeration of instrument-check-solution did not satisfy the state‘s burden of establishing substantial compliance with administrative code standards.

State v. Ferrato, 167 Ohio App. 3d 136, 2006-Ohio-3219 -- Calibration of a BAC Datamaster involves the use of a simulator that heats the test solution to body temperature. The certification of the simulator used had expired according to the manufacturer's recommendation, but since up to date certification is not required by the OAC, suppression was not required.

State v. Holly (1999), 135 Ohio App. 3d 512 -- Director of Health did not abuse his discretion in approving instrument check solution batch, despite doubts expressed by the department's Chief Toxicologist concerning the manufacturer's testing methods. Subsequent testing and testing by the department resolved doubts as to the batch in question.

State v. Johnson (2000), 137 Ohio App. 3d 847 -- Motion conforming to sample motion is a handbook put the prosecutor sufficiently on notice as to issues to be mitigated at suppression hearing, including the need to prove the use of an approved calibration solution and that such solution had been kept refrigerated.

State v. Booth, 151 Ohio App. 3d 635, 2003-Ohio-829, ¶18 -- "While it is true that Sergeant Hill did not record the results the first time he introduced the solution into the BAC DataMaster...(he) was not required to do so. The uncontroverted testimony was that Sergeant Hill had not allowed the solution to warm up sufficiently to conduct the test properly. After the solution reached the proper temperature and was reintroduced, he obtained the reading of .095 which was within the target range."

Columbus v. Robbins (1989), 61 Ohio App. 3d 324 -- For BAC Verifier test results to be admitted, the prosecution must introduce a properly authenticated calibration solution certificate.

State v. Hominsky (1995), 107 Ohio App. 3d 787, 792 -- The results of all calibration tests must be recorded, including unsuccessful tests.

State v. Shuck (1986), 22 Ohio St. 2d 296 -- When the accuracy of a test result is at issue, the court may consider specific calibration test results as well as the margin of error included in the machine's design specifications.

State v. Kauffman (1995), 106 Ohio App. 3d 831 -- Datamaster checklist only bore one of the four required checkmarks and target value was not recorded. This did not constitute substantial compliance, notwithstanding claim machine would not have printed out evidence ticket if the remaining three calibration steps had not been completed.

State v. Wemer (1996), 112 Ohio App. 3d 100 -- While the Ohio Administrative Code requires that maintenance and repair records for a breath testing instrument be maintained for three years, the records need not be kept at the location where the machine is in use.

State v. Bowman (1996), 108 Ohio App. 3d 276 -- Requirement that machine be calibrated every seven days was satisfied when calibration came eleven minutes after the expiration of seven consecutive twenty-four hour periods. Day is held to mean midnight to midnight, with compliance by the end of the final day sufficient.

Upper Arlington v. Kimball (1994), 95 Ohio App. 3d 630 -- Test result should have been suppressed where machine failed calibration check and machine could not be shown to be in proper working order at any time since the last calibration.

State v. Brown (1996), 109 Ohio App. 3d 629 -- Machine was not properly calibrated where regulation called for three digit values and label on test solution only gave two digits to the right of the decimal. For other cases on solutions used to calibrate test machines see State v. Cooper (1997), 120 Ohio App. 3d 284 (delegation); Sidney v. Goodrich (1996), 81 Ohio Misc. 2d 5; State v. Workman (1996), 79 Ohio Misc. 2d 26. State v. Roby (1997), 124 Ohio App. 3d 522 (batch number matters, bottle number doesn't).

State v. Melms (1999), 131 Ohio App. 3d 246 -- Testing of calibration solution by manufacturer was inadequate, but subsequent testing by ODH established that the batch, already in use, was reliable. Continued approval of batch by Director of Health was within his discretion and suppression should not have been ordered. Also see State v. Broerman (1999), 132 Ohio App. 3d 134.

Aurora v. Lesky (1992), 79 Ohio App. 3d 568 -- Documents relating to calibration of breath test machine were not properly certified for purposes of admission as a self-authenticating certified copies of public records where the certification merely stated individual document to be a true and accurate copy of the original without specifically identifying or describing the document being copied and certified. Extrinsic evidence of authenticity is required from a person with the necessary knowledge. Compare State v. Hiler (1994), 96 Ohio App. 3d 271.

Mentor v. Kennell (1992), 83 Ohio App. 3d 637 -- Regulation requiring recalibration of BAC Verifier every seven days (=168 hours) must be strictly complied with. Results of test run several hours after the expiration of the 168 hour limit must be suppressed. Videotape of test being administered must also be suppressed.

State v. Barnes (1988), 46 Ohio Misc. 2d 1 -- Headnote: "When a breath testing machine is taken out of commission, whether it be due to a power outage or other reasons, the machine must be re-calibrated prior to administering a breath test. (Ohio Adm. Code 3701-53-04[A]], applied.)" Also see State v. Spangler (1992), 75 Ohio App. 3d 530 -- Test results properly suppressed where machine was not recalibrated after it had been moved.

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Test results, compliance with Dept. of Health Regulations, Blood tests

State v. Hassler, 115 Ohio St. 3d 322, 2007-Ohio-4947 -- Blood sample used in an aggravated vehicular homicide prosecution was drawn pursuant to a search warrant about seven hours after the incident. This is beyond the two (now three) hour time limit prescribed by R.C. 4511.19(D)(1). Majority holds test results are admissible provided the administration requirements of the subsection are substantially complied with and expert testimony is offered.

State v. Meyers, 146 Ohio App. 3d 563, 2001-Ohio-2282 -- For the results of blood tests conducted by a hospital independent of a request by the authorities to be admissible, procedures must comply with Ohio Department of Health standards.  Hospital's actions did not violate defendant's Fourth and Fifth Amendment rights. Compare State v. Brand, 157 Ohio App. 3d 451, 2004-Ohio-1490.

State v. Zuzga (2001), 141 Ohio App. 3d 696 -- Court finds substantial compliance despite uncertainty about refrigeration and failure of hospital to use an anticoagulant.

State v. Mays (1992), 83 Ohio App. 3d 610 -- Department of Health standards for blood testing were not substantially complied with where there was no testimony as to the use of a sterile dry needle and a container containing an ant-coagulant. Court does take judicial notice of Physicians Desk Reference entry indicating Betadine does not contain alcohol and states results may be admissible accompanied by expert testimony even though sample was drawn more than two hours after alleged violation.

State v. Perry (1996), 108 Ohio App. 3d 709 -- (1) BAC may be measured using blood serum instead of whole blood as statute and regulations refer to "other bodily substance." (2) Failure to use an anti-coagulant does not render blood test inadmissible. (3) Hospital records indicating alcohol level were not in proper form to be self-authenticating, but were authenticated by nurse called as a rebuttal witness. Court finds admission was not an abuse of discretion as the defendant had introduced evidence that he was sober.

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Test results, compliance with Dept. of Health Regulations, Urine tests

State v. Koehler (2000), 107 Ohio Misc. 2d 28 -- Pataskala urine specimen spent eighteen days in the mail, unrefrigerated, on its way to lab in Columbus. Undue delay in transit leads to conclusion there was not substantial compliance with refrigeration requirement.

State v. Cook (1992), 82 Ohio App. 3d 619 -- O.A.C. regulations were substantially complied with where urine sample was not refrigerated for fifteen to twenty minutes between collection and being mailed to lab in Columbus, or during the three days it was in the mail. (Marijuana case.)

State v. Casaday (1987), 40 Ohio App. 3d 52 -- Headnote: "Despite substantial compliance with Ohio Adm. Code 3701-53-05(F) in the analysis of a urine sample, test results may be inadmissible based on expert testimony that the results were inaccurate due to fermentation caused by lack of refrigeration and the high glucose content of the urine sample." (Defendant was diabetic.)

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Test results, compliance with Dept. of Health Regulations, Observation requirements

State v. Householder, 181 Ohio App. 3d 269, 2009-Ohio-826 – A Department of Health memorandum recommended a further 20-minute observation period before attempting a second breath test. Finding this had not been done, the trial court ordered suppression of test results. Reversed. Compliance with standards, not memos, is required. Circumstances did not otherwise suggest an unreliable test result.

State v. Siegel (2000), 138 Ohio App. 3d 562 -- The twenty-minute observation requirement must be strictly complied with. It is not subject to the substantial compliance standard. Once the defendant presented evidence he ingested large quantities of water during the observation period, the state had the burden of proving this would not invalidate the subsequent breath test.

Wellston v. Brown, Jackson App. No. 03CA25, 2005-Ohio-532 -- Trial court improperly kept out expert testimony that the officer administering a breath test should have waited out a new twenty-minute period of time before retesting after a failed attempt to deliver a specimen.  Earlier attempts failed because the defendant quit blowing.  Time would allow dissipation of mouth alcohol.  Challenge of test procedure could be mounted at the trial as well as at a suppression hearing. Dissent notes that the regulations do not require waiting a further twenty minutes.

Bolivar v. Dick (1996), 76 Ohio St. 3d 216 -- Syllabus: "When two or more officers, one of whom is a certified operator of the BAC Verifier, observe a defendant continuously for twenty minutes or more prior to the administration of a breath-alcohol test, the observation requirement of the BAC Verifier operational checklist has been satisfied."

Elyria v. Conley (1994), 99 Ohio App. 3d 40 -- Where the defendant was under observation by one officer for eighteen minutes and another for two minutes (after spitting out chewing tobacco) regulations were substantially complied with.

State v. Willis (1999), 131 Ohio App. 3d 646 -- Though only thirteen minutes elapsed between departure from the scene of the stop and administration of test, there was sufficient evidence that during the time before departure observation was sufficient to place defendant's smoking outside the twenty minute period.

State v. Fraley (1991), 77 Ohio App. 3d 104, 108 -- Testing after only eleven minutes of observation was not in substantial compliance with the requirement of twenty minutes of observation before administering test.

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Test results, Compliance with Dept. of Health Regulations, RFI cases

State v. Lauer (2001), 146 Ohio App. 3d 354, 359 -- Prosecutor presented affidavits establishing that an RFI test had been performed, but not what the results were.  Test results should have been suppressed."Since Lauer specifically raised the issue of the RFI test in her motion to suppress, the state was on notice that it would need to prove that it substantially complied with the requirements.  It failed to do so." Compare State v. El Messoussi, Union App. No. 14-03-53, 2004-Ohio-2473 where failure to identify the brand of radio used did not invalidate test.

State v. Hicks (1998), 128 Ohio App. 3d 640 -- Effective July 7, 1997 RFI testing is not required provided the internal RFI detector is checked weekly for operability. In a case arising before the change only substantial compliance with the regulations was required in testing a machine so equipped.

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Test results, admissibility of records

Bullcoming v. New Mexico (2011), 131 S.Ct. 2708 – In a DUI case the defendant’s blood sample was sent to a state lab for testing. The examiner was on unpaid leave for undisclosed reasons and did not testify. Instead the state called one his associates to validate the report, though he had not participated in the testing. Held that the defendant’s confrontation rights were denied. The associate’s testimony would have been admissible only if the actual examiner was unavailable and the defendant had previously been afforded confrontation. Analogy drawn to inclusion of speed measuring device readout in a speeding complaint.

State v. Edwards, 107 Ohio St. 3d 169, 2005-Ohio-6180 -- Syllabus: "(1) An assertion that test results are inadmissible in a criminal trial because the state failed to substantially comply with methods approved by the Director of Health for determining the concentration of alcohol in bodily fluids must be raised through a pretrial motion to suppress. (State v. French (19950, 72 Ohio St. 3d 446, 650 N.E. 2d 887, approved and followed.) (2) Judicial officials at suppression hearings may rely on hearsay and other evidence to determine whether alcohol test results were obtained in compliance with methods approved by the Director of Health, even though that evidence may not be admissible at trial. (Evid. R. 101(C)(1))."This means the state can get by at the suppression hearing with an unauthenticated copy of a batch certificate, but must have a properly authenticated certificate for results to be admissible if the case goes to trial.

State v. Lake, 151 Ohio App. 3d 378, 2003-Ohio-332 -- Calibration solution certificates were not properly authenticated. No witnesses testified as to authenticity and they were not self-authenticating as they were not certified as correct by the custodian or other authorized person.

State v. Skimmerhorn, 162 Ohio App. 3d 762, 2005-Ohio-4300 -- At the suppression hearing the state offered a photocopy of a certified copy of the ODH batch solution certificate.  The original was at ODH. The certified copy remained at the police station.  The trial court properly excluded the exhibit.  The officer testified he had compared the copy with the certified copy, but had never seen the original. This did not satisfy the Rules of Evidence. The copy was not self-authenticating. A copy of a seal is not the same as a seal. In these circumstances Evid. R. 1005 latitude on the admission of copies for originals may not be further diluted with respect to the admissibility of photocopies under Evid. R. 1003 when public records are involved.

State v. Bowers, 161 Ohio App. 3d 149, 2005-Ohio-2593 -- A certified copy of an uncertified copy of a calibration-solution certificate is inadmissible at a hearing on the suppression of test results.

State v. Ward (1984), 15 Ohio St. 3d 355 -- Syllabus: Certified copies of police logs showing calibration of intoxilyzer equipment are admissible against a defendant in a prosecution for...(OMVI), despite the absence of the calibrating officer at trial." Also see State v. Tyson (1985), 20 Ohio St. 3d 40; State v. Boyd (1985), 15 Ohio St. 3d 7; State v. Waite (1984), 13 Ohio App. 3d 379; State v. Beam (1991), 77 Ohio App. 3d 200 (RFI test report not stating observations made as a part of a criminal investigation).

State v. Walker (1978), 53 Ohio St. 2d 192 -- Certified copies of pages from breath analysis machine log books are admissible in an OMVI prosecution as an exception to the hearsay rule under R.C. 2317.42. At page 200: "It is important to note that we are not further expressly or implicitly holding that all documents qualifying under the Official Reports as Evidence Act are admissible in a criminal proceeding."

State v. Schell (1984), 13 Ohio App. 3d 313, 317-318 -- Affidavit of chemist at Highway Patrol Crime Lab (treated as a public record), regarding solution used for calibration, improperly admitted at the request of the state, applying Evid. R. 803(8)(b). Note: An affidavit would generally not be viewed as a record, though the sort of affidavit involved here may be in the nature of a record. See State v. Glacken (1984), 13 Ohio Misc. 2d 17. In this case the affiant's status as a police officer, making the document a police report, and his refusal to honor a defense subpoena, thereby denying confrontation, may have been real issue.

State v. Mendieta (1984), 20 Ohio App. 3d 18 -- Though entries in intoxilyzer logbook are not admissible as public records in a criminal case because they are prepared by police officers [see Evid. R. 803(8)(b)] they are admissible as a business record under Evid. R. 802.(6).

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Test results, other issues

Columbus v. Aleshire, 187 Ohio App. 3d 660, 2010-Ohio-2773 – Once the admissibility of breathalyzer results has been determined at a suppression hearing a court may limit comparable questioning before the jury

State v. Syx, 190 Ohio App. 3d 845, 2010-Ohio-5880 – Chief toxicologist testified as to blood test results. Blood drawer and toxicologist who performed the blood test testified at a suppression hearing but not at trial. Applying Crager v. Ohio (2009), 129 S.Ct. 2856, right to confrontation was denied. Doesn’t matter that the defendant could have subpoenaed those witnesses. Absent proper admission of test results there was no foundation for expert testimony explaining significance in the context of an impaired driving prosecution. Since speed may be evidence of OVI, testimony of defense expert concerning officer’s estimate the defendant was going 80 in a 35 zone..

State v. Funk, 177 Ohio App. 3d 814, 2008-Ohio-4086 – Defendant was involved in a one car accident and taken to the hospital. After he refused to provide a blood sample, the investigating officers obtained a urine sample collected by catheter that was about to be flushed by hospital personnel. Test results should have been suppressed. There was an expectation of privacy. Hospital patients stand in a different position than prisoners. Urine was not abandoned. Defendant‘s intention was reflected by his refusal to provide a blood sample. Court rejects analogy to trash set out at the curb.

State v. Pulaski, 154 Ohio App. 3d 301, 2003-Ohio-4847, ¶ 59 -- The R.C. 2317.02(B)(2) exception to physician-patient privilege for hospital test results is not subject to the 42 U.S.C. 290dd-2(c) requirement of a court order if the patient is being treated only for injuries resulting from a traffic accident. The federal statute only applies to records of those seeking treatment for drug or alcohol abuse. Also see Middletown v. Newtown, 125 Ohio App. 3d 540.

State v. Markin, 149 Ohio App. 3d 4326, 2002-Ohio-4326 -- Failure to preserve initial "invalid sample" printout was not prejudicial.

State v. Zamorski (2000), 141 Ohio App. 3d 521 -- The visual display from an invalid breath test is irrelevant and inadmissible, even in rebuttal. Court allowed testimony concerning display to rebut defendant's claim she had not been drinking. Reversed.

State v. Ott (1999), 133 Ohio App. 3d 532 -- Trial court erroneously excluded evidence of 0.098 test result in an impaired driving prosecution.

State v. Shuler, 168 Ohio App. 3d 183, 2006-Ohio-4336 -- While the results of breath testing using a portable device may be admissible as to probable cause they are not admissible at trial because the scientific accuracy of the device has not been established.

State v. Sisler (1995), 114 Ohio App. 3d 337 -- Blood sample was withdrawn forcibly while defendant was handcuffed to a hospital bed. Initial statement that he did not care what the f___ they did was enough for consent, which was never withdrawn. But the use of force was beyond what was necessary for effective law enforcement, and amounted to a denial of due process.

Columbus v. Caynor (1996), 111 Ohio App. 3d 398 -- Erroneous date on printout by BAC Verifier, without other evidence that machine was not working properly, goes to weight, but does not warrant suppression.

State v. Phillips (1993), 97 Ohio App. 3d 1 -- Even in a per se prosecution there must be testimony relating test results to the percentage of alcohol concentration by weight. Otherwise, evidence of the test result in meaningless and inadmissible. Officer gave results as .116 without elaboration.

State v. Robbins (September 22, 1994), Franklin Co. App. No. 94APC02-276, unreported (1994 Opinions 4498) -- In an OMVI prosecution the state may successfully subpoena hospital test results as to blood-alcohol level. Amendment of R.C. 2317.02 now excludes such test results from the physician-patient privilege. State v. Smorgala (1990), 50 Ohio St. 3d 222 still stands for the proposition that the courts may not create an exception to the privilege, however, the legislature can.

Hilliard v. Elfrink (1996), 77 Ohio St. 3d 155 -- Officer's failure to advise OMVI arrestee of his right to an independent chemical test is not a basis for suppression of police obtained test results.

State v. Estep (1991), 73 Ohio App. 3d 609 -- No due process violation found where additional per se charge was not filed until after urine sample had been retained for the required period and then destroyed.

State v. Weaver (1993), 86 Ohio App. 3d 427, 432 -- "...(W)e hold that where an accused in an R.C. 4511.19(A)(3) prosecution is denied access to a telephone despite his requests to arrange an independent chemical test, the test conducted by the law enforcement officials must be suppressed."

Elyria v. Heberbrand (1993), 85 Ohio App. 3d 141, 143 -- "A court should not admit into evidence results derived from PBT's (pre-arrest breathalyzer test) listed in Ohio Adm. Code 3701-53-02(D) when a defendant is charged with Ohio's general driving under the influence provision, R.C. 4511.19(A)(1)."

Columbus v. Taylor (1988), 39 Ohio St. 3d 162 -- Admission of results of experimental testing seeking to replicate alcohol consumption and resulting blood alcohol concentration within the discretion of the court. No abuse of discretion where court concluded conditions could not fairly be duplicated.

State v. Dehner (1991), 74 Ohio App. 3d 431 -- In an OMVI prosecution replicate test results were properly excluded where it was not established that experimental conditions matched conditions at time of breath test. Issue was retention of alcohol by a dental plate. Compare State v. English (1991), 77 Ohio App. 3d 371.

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Driving under the influence of drugs

State v. Blevins, 152 Ohio App. 3d 39, 2003-Ohio-1264 -- Bic pen tube was seized at roadside. Defendant was suspected of driving under the influence of OxyContin. At trial, mention of the tube and white powder inside gave rise to inference tube was used to inhale the drug. Failure to specifically object on the basis of Evid. R. 403 did not preserve the issue for appeal. Nor was admission plain error.

State v. Wilson, 124 Ohio Misc. 2d 25, 2003-Ohio-3180 -- Results of urine testing for the presence of marijuana are admissible as O.A.C. 3701-53-03(B) provides testing standards. But motion in limine granted to the extent results will be admissible only if accompanied by testimony relating test results to the common understanding of what constitutes being under the influence of marijuana.

State v. Latta, 126 Ohio Misc. 2d 1, 2003-Ohio-5952 -- Defendant reeked of marijuana when pulled over and was found to have THC metabolite in his blood. But court concludes this did not prove he was under the influence of marijuana at the time he was stopped. Presence of THC explains, but does not predict, motor impairment, since it remains in the blood for days after ingestion of marijuana. Defendant admitted to taking eight cough and cold pills hoping for a "slow motion high." Court follows the R.C. 4506.01(L) definition of drugs of abuse, but even though this may include the drug in question, no testimony was offered as to the appropriate dose.

State v. Ripple (1994), 70 Ohio St. 3d 86 -- Deadhead stopped on the way home from concert at Buckeye Lake was tested for drugs in urine. Syllabus: "Absent approval of methods by the Director of Health pertaining to the testing of bodily substances for drugs, a chemical analysis purporting to indicate the presence of drugs in an accused is inadmissible in a prosecution brought pursuant to R.C. 4511.19. (R.C. 4511.19{D}, construed.) At p. 89: "While other evidence of drug use may be admitted...it is clear the General Assembly has foreclosed the use of chemical drug analysis of bodily substances, unless and until the Director of Health approves such a method."

State v. Sawyer (1991), 74 Ohio App. 3d 185, 188 -- "Until the Director of Health determines methods and means of chemical analysis to ascertain the presence of drugs in urine or other bodily substances, the limitations of R.C. 4511.191(D) will operate to exclude evidence in the form of chemical analysis offered to prove a violation of section (A) with respect to drugs. Of course, an offense may yet be proved by way of other competent evidence." (e.g admissions)

State v. McLemore (1992), 82 Ohio App. 3d 541, 546-547 -- While there are no Department of Health regulations relating to testing for drugs in OMVI cases, is not altogether clear that approved procedures are required. Test result showing the presence of some marijuana may not have been sufficient for conviction. Didn't help that the defendant told the officer he went left of center while putting out the marijuana cigarette he was smoking.

State v. Baker (1998), 131 Ohio App. 3d 507 -- A court may grant treatment in lieu of conviction in an OMVI prosecution premised on both drugs and alcohol.

Euclid v. Heil (1992), 62 Ohio Misc. 2d 540 -- It is not a defense to an OMVI charge that the drug the defendant was operating under the influence of had been prescribed by a physician.

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Sufficiency of proof

Columbus v. Ziegler (1992), 78 Ohio App. 3d 819 -- Expert testimony on the effects of belching on test results did not sufficiently undermine confidence in verdict in an impaired driving prosecution with a .234 test, nor did credit card receipts for only two drinks do so.

State v. Murphy (1986), 30 Ohio App. 3d 255 -- Proof was insufficient when there were some signs of intoxication, but no test result and defendant's condition might otherwise be attributed to involvement in accident.

State v. Cassaday (1987), 40 Ohio App. 3d 52 -- Proof insufficient when there had been a failure to follow D.O.H. procedures and there was expert testimony that defendant's diabetic condition might have led to fermentation and increased test result.

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Miranda issues

State v. Groszewski, 183 Ohio App. 3d 718, 2009-Ohio-4062 – City employee showed up for work and left driving a city truck. Reports indicated he might be under the influence, so he was ordered back to the depot and taken to a hospital for testing in accordance with his contract, which specified a refusal could cost him his job. Test results were admissible for Fifth Amendment purposes, but the statements he made at the hospital were coerced and inadmissible, applying Garrity v. New Jersey (1967), 385 U.S. 493. However, the test results are suppressible as a Fourth Amendment violation, as without the statements obtained in violation of the Fifth Amendment, officers did not otherwise have probable cause.

Berkemer v. McCarty (1984), 468 U.S. 420 -- Miranda warnings prerequisite for admission of statements obtained during custodial questioning of OMVI suspect. Also see State v. Buchholz (1984), 11 Ohio St. 3d 24.

Pennsylvania v. Bruder (1988), 488 U.S. 9 -- Brief period of detention by the side of the road during a routine traffic stop does not require Miranda warnings.

State v. Rollyson (1984), 20 Ohio App. 3d 336 -- Warnings are required when an officer completes an "Alcohol Influence Report."

South Dakota v. Neville (1982), 459 U.S. 553 -- Testimony concerning a defendant's refusal to submit to a blood alcohol concentration test is not contrary to the Fifth Amendment [Cf. Doyle v. Ohio (1976), 462 U.S. 610], nor are Miranda warnings a prerequisite for such testimony. Also see Columbus v. Sheppard (January 15, 1985), Franklin County App. No. 84AP-472, unreported (1985 Opinions 59); State v. Wright (1987), 41 Ohio App. 3d 80; State v. Feasel (1987), 41 Ohio App. 3d 155.

State v. Brandenburg (1987), 41 Ohio App. 3d 109 -- Miranda warnings are not necessary for there to be testimony concerning performance on field sobriety tests, since does not involve testimonial or communicative acts.

State v. Geasley (1993), 85 Ohio App. 3d 360 -- OMVI arrestee was videotaped at police station. Portions relating to advice required under the implied consent law, booking information, and those showing general appearance and demeanor were admissible. Portion relating to questioning after Miranda warning, and assertion of such rights, was not. Also see Pennsylvania v. Muniz (1990), 496 U.S. 582.

Cincinnati v. Gill (1996), 109 Ohio App. 3d 580 -- OMVI arrestee called lawyer from police station, then refused to take test. Call amounted to invocation of right to counsel. Response when asked why test was refused was, therefore, properly suppressed and could not be characterized as routine booking information.

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Other trial issues

State v. Orians, 179 Ohio App. 3d 701, 2008-Ohio-6185 – Court erroneously used an instruction linking refusal to take a test to consciousness of guilt that made repeated reference to intoxication, which is not an element of OMVI, and informed the jury that the failure to provide an explanation for the refusal when asked for one could be considered as well.

State v. Benton (2000), 136 Ohio App. 3d 801 -- Knowing that the Highway Patrol video and audiotapes all stops, defense sought tapes through discovery. Tapes are retained for a while, but eventually are recycled, and apparently had been reused by the time of trial. Failure to preserve tapes in light of the discovery motion required dismissal. Arizona v. Youngblood (1988), 486 U.S. 51, California v. Trombetta (1984), 467 U.S. 479 and Columbus v. Forest (1987), 36 Ohio App. 3d 169, followed. Also see State v. Williams, 126 Ohio Misc. 2d 47, 2003-Ohio-7294.

State v. Wolf, 154 Ohio App. 3d 293, 2003-Ohio-4885 -- Accidental destruction of tape from cruiser mounted camera was not a violation of due process. After the first pretrial it was ascertained that after the tape was shown to other officers it was rewound to the beginning and placed back in the cruiser.

State v. Hatt (2000), 140 Ohio App. 3d 694 -- Ineffective assistance found in counsel's efforts at a bench trial of an OMVI-impaired driving case. Hospital records showed no alcohol in blood. Counsel asserted privilege to keep prosecutor from using report, then failed to introduce the results himself. Counsel also failed to have the court address a not guilty by insanity plea or competency motion.

State v. Klein, Franklin App. No. 03AP-945, 2004-Ohio-4557 -- In a felony OMVI prosecution the defense stipulated the authenticity of former judgment entries, but claimed two of three were defective.  A no contest plea requires an admission of the facts alleged in the complaint or indictment. It may not be "customized" to accommodate determination of a disputed issue in this manner.

State v. Gleason (1989), 65 Ohio App. 3d 206 -- Court may seat jurors who express the opinion that it is wrong to drive after drinking provided they say they are able to set this opinion aside.

State v. Boyd (1985), 18 Ohio St. 3d 30 -- In an OMVI per se prosecution the relevant issues are whether the defendant operated the vehicle and the concentration of alcohol in his blood, breath or urine. At p. 31: "Standing alone, (defendant's) appearance, manner of speech and walking, and lack of any symptoms of intoxication are not relevant evidence and, therefore, not admissible."

State v. Scheurell (1986), 33 Ohio App. 3d 217 -- When impaired driving is at issue, expert testimony required to interpret test results, particularly when are below .10. Also see Toledo v. Raider (1983), 14 Ohio App. 3d 198, 200.

State v. Mendieta (1984), 20 Ohio App. 3d 18, 19 -- When the judge sits as trier of fact, he may take judicial notice of the meaning of an intoxilyzer reading.

Westerville v. Cunningham (1968), 15 Ohio St. 2d 121 -- Defendant's refusal to take test may be mentioned at trial. Also see South Dakota v. Neville (1982), 459 U.S. 553. But see Columbus v. Maxey (1988), 39 Ohio App. 3d 171 (defendant refused because first wanted to consult counsel).

State v. Sanders (1998), 130 Ohio App. 3d 789, 795 -- Court erroneously excluded from evidence defendant's signature on implied consent form. Lack of impairment of fine motor skills was relevant in an OMVI prosecution.

Columbus v. Maxey (1988), 39 Ohio App. 3d 171 -- (1) Where officers have testified that the defendant had difficulty performing field sobriety tests, it was error to prevent the defendant from repeating those tests in the court room to demonstrate difficulty was caused by other physical problems. (2) Instruction allowing the jury in an OMVI case to infer that the defendant was under the influence from his refusal to take breath test erroneous: "...(A) judge in instructing a jury should not single out parts of the testimony and instruct as to the fact such testimony tends to prove. This places undue weight upon a part only of the evidence." Also see Lambert v. State (1922), 105 Ohio St. 219; Morgan v. State (1891), 48 Ohio St. 371.

State v. Allen (1987), 29 Ohio St. 3d 53 -- Prior OMVI convictions which merely enhance the penalty and do not raise the level of the offense should not be made known to the jury.

State v. Yost (1986), 33 Ohio App. 3d 173 -- Error to make known to the jury the injuries sustained by one of the other drivers involved in an accident.

State v. Fox (1987), 39 Ohio App. 3d 114 -- Error for verdict forms to bear caption "operating under the influence of alcohol/drugs w/prior Conv. 4511.19 ORC."

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Sentencing issues, misdemeanor cases

Columbus v. Aleshire, 187 Ohio App. 3d 660, 2010-Ohio-2773 – Per se and impaired driving counts merge.

State v. Brown, 166 Ohio App. 3d 90, 2006-Ohio-1792 -- R.C. 2951.041 does not provide for intervention in lieu of conviction in OMVI cases. A court may not provide such a program on the basis of common law.  Placement is such a program means the guilty plea may not be sustained under Crim. R. 11.

State v. Kelly, 154 Ohio App. 3d 285, 2003-Ohio-4783 -- An uncounselled juvenile DUI adjudication may not be used to enhance the penalty for a subsequent offense. But the defendant must make a prima facie showing that the prior conviction was uncounselled, such as evidence that he was indigent or otherwise unable to obtain counsel.

State v. Ryan (1984), 17 Ohio App. 3d 150 -- Though per se and impaired driving violations of R.C. 4511.19 may be tried together, conviction and sentence may be entered on only one. But see State v. Gabor (1986), 33 Ohio App. 3d 122 (Acts constituting OMVI and physical control separated by time and distance.)

Nichols v. United States (1994), 511 U.S. 738 -- A prior uncounselled misdemeanor conviction, constitutional under Scott v. Illinois (1979), 440 U.S. 367 because no sentence of imprisonment was imposed, may be used to enhance the sentence for a later offense, even though that sentence entails imprisonment. Baldasar v. Illinois (1980), 446 U.S. 222, overruled. Opinion leaves standing the rule that an uncounselled prior conviction may not be used to increase the degree of an offense, where proof of the conviction is an element of the crime rather than a sentencing consideration. See Burgett v. Texas (1967), 389 U.S. 109.

State v. Schupp (1999), 100 Ohio Misc. 2d 13 -- Prior uncounseled OMVI conviction could not be used to enhance penalty for subsequent offense. Defendant claimed to have been unrepresented, and the record from the Franklin County Municipal Court was insufficient to establish either waiver or representation by a public defender as indicated in the court file. Also see State v. Glendenning (1999), 103 Ohio Misc. 2d 46, where in addition, the prior hearing was not in compliance with Crim. R. 11(E).

State v. Waddell (1995), 106 Ohio App. 3d 600 -- Defendant appeared in front of a temporary judge and was sentenced as a first offender on OMVI, though there was a prior offense, and for a driving under suspension violation as if there was no minimum sentence. Sentences were reduced to judgment, but after the resident judge returned, increased sentences were imposed, reflecting a second offense OMVI and a DUS violation carrying a three day minimum. Held to violate double jeopardy.

State v. Kesterson (1993), 91 Ohio App. 3d 263 -- Defendant was sentenced to consecutive one year terms for third and fourth OMVI convictions, plus a consecutive 180 days on another charge. Held that R.C. 2929.41(E)(3) limits the aggregate term to eighteen months. Since the statute is self-executing, the sentence pronounced by the trial court need not be modified.

State v. Schneider (1993), 87 Ohio App. 3d 252 -- To calculate the number of prior offenses in a five year period for purposes of determining the penalty for OMVI, the date of the first conviction is excluded and the date of arrest for the offense in question must fall before the fifth anniversary. See dissent.

State v. Blogna (1990), 60 Ohio App. 3d 141 -- Juvenile court adjudications are not to be included in calculating the number of prior convictions when passing sentence for OMVI.

Columbus v. Kemper (1992), 82 Ohio App. 3d 49 -- No conflict with the general law of the state found where state's OMVI statute bases sentence on convictions within the last five years and Columbus OMVI ordinance contains no such time limit.

State v. Moine (1991), 72 Ohio App. 3d 584 -- It is improper to make no arrests for OMVI or driving under suspension a condition of probation. Mere arrest may not be a basis for violation of probation.

State v. Zucal (1998), 82 Ohio St. 3d 215 -- A delay in execution of sentence resulting from jail overcrowding that exceeds five years from the date that sentence is imposed is unlawful.

State v. Corbin (1999), 131 Ohio App. 3d 239 -- A person sentenced for first offense felony OMVI must be given local time. Even if later granted judicial release and found in violation, a sentence to the Ohio Department of Correction and Rehabilitation is not allowed.

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State v. Adkins, 129 Ohio St. 3d 287, 2011-Ohio-3141 – Beginning in 1996 R.C. 2901.08 includes prior delinquency adjudications as “convictions” for purposes of enhancing punishment for subsequent offenses. Defendant claimed a retroactive law violation when this provision was applied to a 1987 juvenile OMVI conviction used to charge him with felony OMVI, based on a 20-year lookback. No violation found. Provision was not retrospective, nor did it add to punishment for the past offense. All of the punishment is for the present offense of conviction. None is for recidivism.

State v. Parker, 186 Ohio App. 3d 600, 2010-Ohio-1092 – The 20-year look back for prior OMVI convictions does not constitute an ex post facto law. Instead it increases the penalty for the current offense.

State v. Thompson, 121 Ohio St. 3d 250, 2009-Ohio-314 – Syllabus: "For purposes of penalty enhancement in later convictions under R.C. 4511.19, after the defendant presents a prima facie showing that the prior convictions were unconstitutional because the defendant had not been represented by counsel and had not validly waived the right to counsel and that the prior convictions had resulted in confinement, the burden shift to the state to prove the right to counsel was properly waived. (State v. Brooke, 113 Ohio St. 3d 199, 2007-Ohio-1533, 863 N.E.2d 1024, paragraph one of the syllabus, explained.)" A prima facie case means more than a bare assertion. The defendant must submit evidence such as testimony, affidavits or transcripts.

State v. Lee, 191 Ohio App. 3d 219, 2010-Ohio-6276 – Defendant was convicted of F-3 OVI which requires proof of five or more priors, at least two of which were felonies. BMV records indicated five priors, two being felonies, but in response to an interrogatory on the verdict form, the jury found five prior felonies. While the evidence may have been sufficient, the court cannot overlook the finding, which is not supported by the record. Remanded for retrial. In addition, the BMV transcript considered did not qualify as self-authenticating under any of the provisions within Evid. R. 902.

State v. Eckles, 173 Ohio App. 3d 606, 2007-Ohio-6220 -- Defendant pled guilty to felony OMVI and a 20-year look back specification. No error found in counsel initially stating that the defendant pled guilty, as the plea was not accepted until after inquiry from the bench. Nor was the judge required to elaborate that every element had to be proven beyond a reasonable doubt, and that a decision not to testify could not be used against him or commented upon. But the court was required to fully advise as to the maximum penalty, including an additional mandatory term on the look-back specification. The court neglected to impose this term so despite winning the appeal the defendant faces a longer sentence upon remand.

State v. Norris, 168 Ohio App. 3d 572, 2006-Ohio-4325 -- For purposes of additional time on a R.C. 2941.1413 specification, prior convictions need not specifically be called "OVI" offenses. It is sufficient that they be an equivalent offense.

State v. Wilton (1999), 133 Ohio App. 3d 575 -- First time felony OMVI offender is entitled to serve local time and may not be sentenced to prison. Since any subsequent felony OMVI carries more serious sanctions, court opines such status should be included in indictment.

State v. Rohda (1999), 135 Ohio App. 3d 21 -- First time felony OMVI offender may not be sentenced to state correctional facility even upon violation of control sanctions following completion of local time. Court sidesteps question of credit for time served in as part of an additional local program without describing nature of that confinement.

State v. Lamis (2000), 139 Ohio App. 3d 617 -- Period of electronically monitored house arrest following mandatory local time does not amount to an improper stacked sentence.

State v. Wright (2000), 137 Ohio App. 3d 737 -- (1) Condition that defendant convicted of felony OMVI stay out of places where alcoholic beverages are sold, distributed, served or given away is vague and overbroad. (2) Courts are without authority to suspend mandatory fines.

State v. Suchevits (1999), 138 Ohio App. 3d 99 -- The minimum fine upon conviction of felony OMVI is mandatory. The court is not obliged to conduct a hearing to determine the ability to pay, and the court has no discretion to waive the fine.

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License suspensions

State v. Crosby, 174 Ohio App. 3d 97, 2007-Ohio-6511 – Motorist was charged with driving while under an administrative license suspension. Months later he obtained a stay of the suspension extending back to the day it went into effect following his refusal to take a breath test. While the municipal court had the authority to grant the stay, it did not nullify the charge. See dissent.

Judy v. Ohio Bureau of Motor Vehicles, 100 Ohio St. 3d 122, 2003-Ohio-5277 -- Under former R.C. 4511.191 the BMV could not collect reinstatement fees for both an initial administrative license suspension and a judicial suspension arising from the same prosecution. According to footnote 3, the version of the statute in effect since 1998 allows collection of a single (greater) reinstatement fee. In this class action suit, the trial court properly ordered post-judgment interest.

State v. Balsley, 118 Ohio Misc. 2d 107, 2002-Ohio-2741 -- R.C. 4507.16(F) permits courts to grant occupational driving privileges following an initial period of suspension imposed upon conviction for OMVI. Drivers are ineligible if they have three or more convictions in the preceding seven years. That period ends on the date application is made, and includes the charge on which the suspension was imposed. Motorist becomes eligible when older charges drop more than seven years in the past.

Hughes v. Ohio Department of Motor Vehicles (1997), 79 Ohio St. 3d 305 -- Syllabus: "An Ohio resident whose driver's license has been suspended in Ohio based upon an out-of-state conviction for driving while under the influence of drugs or alcohol may petition for occupational driving privileges in Ohio. Former R.C. 4507.16 and former 4507.169 rad in pari materia.).

State v. Finney (1996), 114 Ohio App. 3d 74 -- R.C. 4507.16 permits a maximum three year license suspension, unless there has been an OMVI conviction in the past five years, raising the maximum to five years.

State v. Williams (1996), 76 Ohio App. 3d 290 -- Paragraph one of the syllabus: "The doctrine of issue preclusion does not preclude the relitigation in a criminal proceeding of an issue that was previously determined at an administrative-license suspension hearing." While all the requisites for application of the doctrine of issue preclusion (collateral estoppel) are present, an exception is made based upon the basic dignity of the two proceedings and considerations of public safety.

Wright v. Ohio Bureau of Motor Vehicles (1994), 67 Ohio Misc. 2d 29, 39 -- "R.C. 4507.169 when read in paria materia with R.C. 4507.60 does not violate the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. An Ohio licensee who is convicted of an out-of-state DUI and receives an automatic six-month driving suspension is entitled to petition for occupational driving privileges as if the individual were convicted of DUI in Ohio. Accordingly, the court should, in those cases where appropriate, grant occupational driving privileges."

Bell v. Bureau of Motor Vehicles (1997), 118 Ohio App. 3d 227 -- Truck driver was charged with greater than .04 offense, but pleaded guilty to lesser offense of having a measurable or detectible concentration of alcohol. BMV could not impose the 1-year commercial license suspension applicable to the greater offense, but not the lesser infraction.

In re Eric W. (1996), 113 Ohio App. 3d 367, 372-373 -- A juvenile court may not suspend a license beyond the offender's eighteenth birthday.

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Forfeiture and other financial issues

State v. Posey (1999), 135 Ohio App. 3d 751 -- Defendant's car was seized upon repeat arrest for OMVI within a six year period. When he pled guilty, the car was ordered forfeited, but before he was sentenced he was permitted to withdraw his guilty plea. At trial he was found not guilty. Court ordered car returned conditioned upon payment of more than $4,000 in towing storage and repair costs. (1) Vacating the guilty plea voided the forfeiture. (2) There was no authority for requiring defendant to pay costs of repairs city undertook before putting car to use as an undercover police vehicle. (3) As applied to owners who have been acquitted of OMVI, R.C. 4511.195 violates due process. Car must be returned without payment of any costs.

State v. Heinrich (2001), 142 Ohio App. 3d 654 -- Motorist was unconstitutionally ordered to pay costs of vehicle storage following acquittal. Since he paid to retrieve his car before the appeal was decided, he was entitled to have the case remanded to the trial court for a determination which government entity was responsible for the costs so he could pursue reimbursement.

State v. Ziepfel (1995), 107 Ohio App. 3d 646 -- Court upholds forfeiture of an expensive motorcycle in a fourth offense OMVI. Opinion discusses excessive fines cases, in personam and in rem forfeitures, and instrumentality and proportionality standards.

Sate v. Yoder (1998), 127 Ohio App. 3d 72 -- Following defendant's acquittal of OMVI, court ordered BMV to bear the cost of storage for immobilized vehicle. Reversed, as controlling statute calls for release of vehicle, but does not address who is to bear the expense of immobilization. Question remains whether court could order release at no expense to the defendant, leaving the impound lot to seek recourse against whoever brought the car to them.

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