1. law, govt and politics

2015 Annual Convention
Traffic Law Update: Is Implied Consent
Constitutional and Examining the Breath
Machine at the Police Station
Traffic Law Committee
1.5 General CLE Hours
April 29 – May 1, 2015 ♦ Sandusky
Speaker Biographies
Terrence R. Rudes
Rudes Law Office
Port Clinton, Ohio
Mr. Rudes received his BA from The University of Toledo and his JD from The University of Toledo College of
Law. His professional memberships include the Ohio State Bar Association, Ohio Association of Criminal
Defense Lawyers, and National Association of Criminal Defense Lawyers. Mr. Rudes is a solo practitioner and
focuses his practice on OVI defense, including trials and appeals. He has attended specialized training and was
certified in Standardized Field Sobriety Testing in 1997. Mr Rudes attended three days of factory training at
National Patient Analytical Systems, Inc. on the DataMaster line of breath testing devices, as well as numerous
national DUI seminars. He is a frequent presenter on OVI-related topics for several organizations across Ohio.
For additional information, please visit www.duiohio.net.
Joseph D. Hada
Saia & Piatt, PLL
Mayfield Heights, Ohio
Mr. Hada received his BA from Heidelberg College and his JD from Cleveland State University ClevelandMarshall College of Law. His professional memberships include the Cleveland Metropolitan Bar Association,
Cuyahoga Criminal Defense Lawyers Association, Geauga County Bar Association, Lake County Bar Association,
Ohio State Bar Association, Lake County Criminal Defense Lawyers Association (Founding Member), and Ohio
Association of Criminal Defense Lawyers. Mr. Hada is an associate attorney with his firm and has dedicated his
practice to OVI/DUI, criminal, and traffic defense. As a former public defender, he has a wealth of experience
in defending OVI/DUI, Criminal and Traffic charges from arraignment through trial. Mr. Hada is a frequent
speaker at seminars on the topic of OVI/DUI Defense and continues to research and pursue innovative
defenses for his clients. For additional information, please visit www.splaws.com.
Chapter 1:
Implied Consent: Is It
Unconstitutional?
Terrence R. Rudes
Rudes Law Office
Port Clinton, Ohio
Table of Contents
History............................................................................................................................................. 1
A.
Schmerber v. California (1966), 384 U.S. 757, 86 S.Ct. 1826, 16 L. Ed. 2d 908. .............. 1
B.
State v. Hoover, 123 Ohio St. 3d 418, 2009-Ohio-4993. .................................................. 1
C.
New paradigm. ................................................................................................................. 2
D.
The game changer. ........................................................................................................... 2
E. What is not in the majority opinion. .................................................................................... 2
Issues and Authority ....................................................................................................................... 2
A.
A chemical test is a search. .............................................................................................. 2
B.
Exception to warrant requirement that do not apply. .................................................... 3
Use of Exercise of a Constitutional Right Against a Defendant ...................................................... 5
Chilling of Exercise of Constitutional Right..................................................................................... 6
Missouri v. McNeely........................................................................................................................ 9
Implied Consent: Is It Unconstitutional? • i
ii • Traffic Law Update
Chapter 1:
Implied Consent: Is It
Unconstitutional?
Terrence R. Rudes
Rudes Law Office
Port Clinton, Ohio
History
A. Schmerber v. California (1966), 384 U.S. 757, 86 S.Ct. 1826, 16 L. Ed. 2d 908.
1. Elimination of alcohol from the body, under the facts of this case, established an
exigent circumstance that is an exception to the warrant requirement.
2. Determination of exigent circumstances is to be made on a case by case basis
B. State v. Hoover, 123 Ohio St. 3d 418, 2009-Ohio-4993.
{¶ 18} Section 4511.191, Revised Code, does not violate the search and seizure
provision of the Fourth Amendment, nor the self-incrimination clause of the
Fifth Amendment to the United States Constitution by providing that any
operator of a motor vehicle upon the public highways in this state shall be
deemed to have given consent to a chemical test to determine the alcoholic
content of his blood if arrested for the offense of driving while under the
influence of alcohol. (Schmerber v. California [1966], 384 U.S. 757 [86 S.Ct.
1826, 16 L.Ed.2d 908]; Westerville v. Cunningham [1968], 15 Ohio St.2d 121 [44
O.O.2d 119, 239 N.E.2d 40], applied.)
{¶ 19} The United States Supreme Court has held that if an officer has probable
cause to arrest a driver for DUI, the result of an analysis of a blood sample
taken over the driver's objection and without consent is admissible in evidence,
even if no warrant had been obtained. Schmerber v. California (1966), 384 U.S.
757, 86 S.Ct. 1826, 16 L.Ed.2d 908. The court noted that delaying the test to get
a warrant would result in a loss of evidence. Id. at 770-771, 86 S.Ct. 1826, 16
L.Ed.2d 908. Following Schmerber, we held that “[o]ne accused of intoxication
has no constitutional right to refuse to take a reasonably reliable chemical test
for intoxication.” Westerville v. Cunningham (1968), 15 Ohio St.2d 121, 44
O.O.2d 119, 239 N.E.2d 40, paragraph 2 of the syllabus.
Implied consent statutes have been passed in all 50 states and the District of Columbia.
Legislative elimination of a constitutional right.
Implied Consent: Is It Unconstitutional? • 1.1
C. New paradigm.
The implied consent law does not eliminate the requirement of a search warrant in OVI
cases, neither does the fact of dissipation of alcohol from the body create an exigent
circumstance exception to a search warrant. The argument below, based on Missouri v.
McNeely (2013) 569 U.S. _____, 133 S. Ct. 1552, 185 L.Ed.2d 696, requires this court to
reexamine decades of precedent regarding chemical testing in the OVI context and the
application of Article I § 14 of the Ohio Constitution and the U.S. Constitution’s Fourth
Amendment protections. After McNeely, decades of preexisting case law on chemical
testing consent is no longer valid precedent. Just as other landmark cases like Miranda
v. Arizona, Mapp v. Ohio, Terry v. Ohio, reversed decades of existing precedent law on
self-incrimination and right to counsel, application of the exclusionary rule to the states,
and citizen restraint by police, McNeely has changed the existing implied consent and
OVI law.
D. The game changer.
1. Missouri v. McNeely (2013), 569 U.S., 133 S. Ct. 1552, 185 L. Ed. 2d 696.
2. Schmerber is affirmed. Exigent circumstances are determined on a case-by-case basis.
3. Blanket exemptions or rules are not allowed.
4. Elimination of alcohol from the body is not an exigent circumstance.
5. Advances in communication capability makes warrants faster to obtain.
E. What is not in the majority opinion.
Implied consent statutes were mentioned, but the majority did not approve them as an
exception to the warrant requirement.
Justice Roberts would find exigent circumstances in most cases.
Issues and Authority
A. A chemical test is a search.
Schmerber v. California (1966), 384 U.S. 757, 86 S. Ct. 1826, 16 L. Ed. 2d 908. See also
State v. Hoover, 123 Ohio St. 3d 418, 2009-Ohio-4993, 916 N.E.2d 1056 (Ohio 2009);
State v. Sweinhagen (Nov. 7, 1989), 3d Dist. No. 4-88-3, 1989 Ohio App. LEXIS 4244.
McNeely held that absent an emergency a defendant has the right to insist on a warrant
before submitting to a test. Schmerber at 770, 86 S. Ct. 1826. McNeely, Id., 133 S. Ct.
1552, 1558, quoting Schmerber infra.
The implied consent statute is only invoked where the person has first been arrested
and is in custody. Being in custody, with the search incident to arrest police have the
time to get a search warrant, like searching a cell phone or a car in impound.
Breath and urine tests are treated the same as blood.
(Cited in McNeely) Skinner v. Railway Labor Executives’ Ass’n, 489 U.S. 602, 603, 618,
109 S. Ct. 1402, 1405, 103 L.Ed.2d 639 (1989).
1.2 • Traffic Law Update
(b) The collection and subsequent analysis of the biological samples required or
authorized by the regulations constitute searches of the person subject to the
Fourth Amendment. This Court has long recognized that a compelled intrusion
into the body for blood to be tested for alcohol content, and the ensuing
chemical analysis, constitute searches. Similarly, subjecting a person to the
breath test authorized by Subpart D must be deemed a search, since it requires
the production of "deep lung" breath, and thereby implicates concerns about
bodily integrity. Moreover, although the collection and testing of urine [109
S.Ct. 1406] under the regulations do not entail any intrusion into the body, they
nevertheless constitute searches, since they intrude upon expectations of
privacy as to medical information and the act of urination that society has long
recognized as reasonable. Even if the employer's antecedent interference with
the employee's freedom of movement cannot be characterized as an
independent Fourth Amendment seizure, any limitation on that freedom that is
necessary to obtain the samples contemplated by the regulations must be
considered in assessing the intrusiveness of the searches affected by the testing
program. Pp. 616-618.
B. Exception to warrant requirement that do not apply.
Any blanket exception created by legislature that is not based on a case-by-case
analysis. Missouri v. McNeely, 133 S. Ct. 1552, 185 L. Ed. 2d 696 (2013).
Exigent circumstances of run of the mill OVI stop/arrest. Missouri v. McNeely, 133 S. Ct.
1552, 185 L. Ed. 2d 696 (2013). Natural elimination of alcohol over time is not an exigent
circumstance.
Implied consent statutes constitutes an illegal legislative attempt to nullify a
constitutional right:
Missouri v. McNeely, 133 S. Ct. 1552, 185 L.Ed.2d 696 (2013).
Consent because defendant submitted on misinformation:
State v. Brunty, 2014-Ohio-4307, 11th Dist., {¶14} defendant’s consent to blood draw
was not voluntarily given as he had been threatened with the use of force for obtaining
a test; also City of Berea v. Collins, 2014-Ohio-3822; State v. Cross, 2014-Ohio-1046.
State v. King, 1st Dist. No. C-010778, 2003-Ohio-1541, at ¶24 (citation omitted). In the
context of consensual searches and seizures, the state is required to demonstrate “that
the consent was in fact voluntarily given, and [was] not the result of coercion, express or
implied. Voluntariness is a question of fact to be determined from all the circumstances.
Schneckloth v. Bustamonte (1973), 412 U.S. 218, 248-249, * * *.” (Parallel citations
omitted.) State v. Hatfield, 11th Dist. Ashtabula No. 2006-A-0033, 2007- Ohio-7130,
¶111.
U.S. v. Weidul, 325 F.3d 50, 54 (1st Cir. 2003), consent to search not voluntary though
resident said “okay” because officer’s statement that he was going to search laundry
room was a claim of lawful authority; Trulock v. Freeh, 275 F.3d 391, 402 (4th Cir. 2001),
consent to search not voluntary because suspect was falsely told FBI already had search
warrant; U.S. v. Escobar, 389 F.3d 781, 786 (8th Cir. 2004), consent to search not
voluntary because officer falsely informed suspect that drug-sniffing dog positively
identified presence of drugs in suspect’s luggage; U.S v. Stephens, 206 F.3d 914, 917-18
(9th Cir. 2000), consent to search not voluntary because officers conveyed message that
Implied Consent: Is It Unconstitutional? • 1.3
compliance by defendant was required; Camfield v. City of Oklahoma City, 248 F.3d
1214, 1233 (10th Cir. 2001), consent not voluntary if made in acquiescence to claim of
lawful authority or misrepresentation of lawful authority.
Search incident to arrest.
McNeely, id., 133 S. Ct. 1552, 1558.
Constitution applies to ALS administrative searches.
Westlake v. Gerber, 2011-Ohio-114, 8th Dist., Cuyahoga, citing Watford v. Ohio Bur. of
Motor Vehicles (1996), 110 Ohio App. 3d 499, 674 N.E.2d 776, this court stated that “a
lawful arrest, including a constitutional stop, must take place before a refusal to submit
to chemical tests of one’s blood, breath, urine or other bodily substances triggers a
license suspension.” Id., citing Williams v. Ohio Bur. of Motor Vehicles (1992), 62 Ohio
Misc. 2d 741, 610 N.E.2d 1229.
Warrantless searches are per se unreasonable unless one of the enumerated
exceptions to the warrant requirement applies.
State v. Kessler, 53 Ohio St. 2d 204, 207, 373 N.E.2d 1252 (1978); Katz v. United States,
389 U.S. 347, 357, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967); Missouri v. McNeely, 569 U.S.
____, 133 S. Ct. 1552 at 1558 (2013). The burden is on the state to establish that a
warrantless search is valid under one of those exceptions. City of Xenia v. Wallace, 37
Ohio St. 3d 216, 218, 524 N.E.2d 889 (1988).
States that have held their implied consent laws unconstitutional.
Since the McNeely decision, four states have declared their implied consent laws
unconstitutional. In Byars v. State (2014), 336 P.3d 939, the Nevada State Supreme
Court held that Nevada’s Implied consent statute was unconstitutional because it
allowed officers to conduct a search without a warrant, valid consent, or another
exception to the warrant requirement.
State v. Wulff (2014), 337 P.3d 575 the Idaho State Supreme Court held that Idaho’s
implied consent statute was unconstitutional because Idaho’s implied consent statute is
an unconstitutional per se exception to the warrant requirement.
Colorado v Schaufele, 325 P.3d 1060 (Colo. 2014), Supreme Court of Colorado, en banc.
[¶3] We affirm the trial court’s suppression order. We hold that the trial court
properly adhered to Missouri v. McNeely, 133 S. Ct. 1552, 185 L.Ed.2d 696
(2013), in suppressing evidence of Schaufele’s blood draw. We reject the
People’s invitation to disregard the majority opinion in McNeely, which instructs
a trial court to consider the totality of the circumstances, and to adopt instead
Chief Justice Roberts’s concurring and dissenting opinion that “a warrantless
blood draw may ensue” if “an officer could reasonably conclude that there is
not sufficient time to seek and receive a warrant.” Id. at 1573 (Roberts, C.J.,
concurring in part and dissenting in part).
The highest criminal court in Texas followed McNeely in Texas v Villarreal, No. PD- 030614, (no SW cite available) Court of Criminal Appeals of Texas, Nov. 26, 2014, stating:
In addressing the merits of the State's challenge to the trial court's ruling, we
conclude that the warrantless, nonconsensual testing of a DWI suspect's blood
does not categorically fall within any recognized exception to the Fourth
1.4 • Traffic Law Update
Amendment's warrant requirement, nor can it be justified under a general
Fourth Amendment balancing test. Accordingly, we hold that the search in this
case violated the Fourth Amendment.
Weems v. State, 434 S.W.3d 655 – Tex. Court of Appeals, 4th Dist. 2014,, held that the
implied consent statute did not eliminate the Fourth Amendment search warrant
requirement, that the officer did not act in good faith as the implied consent law did not
provide that a search warrant was not needed, and that the good faith exception to
suppression only applies to search warrants where the facts had been previously
reviewed by a neutral magistrate or judge.
Statutory provisions for obtaining hospital chemical test results unconstitutional as
applied. Ohio Rev. Code §§ 2317.02 and .022.
State v. Little, 2014-Ohio-4871, 3d Dist. Auglaize County, the court held that an OVI
suspects expectations of privacy are not to be diminished easily, citing Missouri v.
McNeely, 133 S. Ct. 1552, 185 L.Ed.2d 696 (2013). See also State v. Clark, 2014-Ohio4873, 3d Dist., Hancock County.
Use of Exercise of a Constitutional Right Against a Defendant
A prosecutor cannot argue or introduce evidence of the exercise of a Constitutional Right.
Doyle v. Ohio, 426 U.S. 610, 96 S. Ct. 2240 (1976) and Griffin v. California, 280 U.S. 609, 85 S.
Ct. 1229 (1965); U.S. v. Hale, 422 U.S. 171, 95 S. Ct. 2133, 45 L. Ed. 2d 99 (1975); U.S. v.
Moore, 104 F.3d 377, 46 Fed. R. Evid. Serv. 250 (D.C. Cir. 1997); U.S. v. Boyd, 620 F.2d 129, 5
Fed. R. Evid. Serv. 1336 (6th Cir. 1980); Williams v. Zahradnick, 632 F.2d 353 (4th Cir. 1980);
Franklin v. Duncan, 70 F.3d 75 (9th Cir. 1995).
A person has an absolute right to refuse consent to an entry and search, and the assertion
of that right cannot be a crime. State v. Scott M., 135 Ohio App. 3d 253, 260 733 N.E.2d 653
(6th Dist. Erie Cty. 1999).
Defendant’s failure to testify on his or her own behalf. Griffin v. California, 380 U.S. 609,
615, 85 S. Ct. 1229, 14 L.Ed.2d 106 (1965); State v Sargent, 169 Ohio App. 3d 679, 683,
2006-Ohio-6823; State v Rogers (1987), 32 Ohio St. 3d 70; State v lynn (1966), 5 Ohio St. 2d
106.f
Fagundes v. United States, 340 F.2d 673 (1965). There the court said:
* * * Thus when Fagundes said when he was arrested and handcuffed that he
wanted to see a lawyer he was exercising a federal constitutional right. And
certainly at that juncture he had the constitutional right to keep silent. * * * His
assertion of one constitutional right, his right to counsel, and his reliance upon
another constitutional right, his right to remain silent when charged with crime, we
think cannot be used against him substantively as an admission of guilt, for to do so
would be to render the constitutional rights mere empty formalities devoid of
practical substance. * * * (p.677.)
United States v. Prescott, 581 F.2d 1343 (9 Cir. 1978) cannot be a crime for a person to
refuse entry to premises to cop who does not have a warrant.
State v. Brunty, 2014-Ohio-4307, 11th Dist., defendant’s consent to blood draw was not
voluntarily given; City of Berea v. Collins, 2014-Ohio-3822; State v. Cross, 2014- Ohio-1046.
Implied Consent: Is It Unconstitutional? • 1.5
The Ninth District Court of Appeals has held that “refusing to cooperate with a law
enforcement officer is not punishable conduct.” State v. McCrone (1989), 63 Ohio App. 3d
831, at 471; Patrizi v. Huff, 690 F.3d 459 (6th Cir. 2012). Refusing to consent to a search
without a warrant is not an offense.
Camara v. Municipal Court, 387 U.S. 523, 87 S. Ct. 1727, 18 L. Ed. 2d 930 (1967), and See v.
City of Seattle, 387 U.S. 541, 87 S. Ct. 1737, 18 L. Ed. 2d 943 (1967). Both cases dealt with
statutes/ordinances that criminalized the right to refuse a warrantless search. Both cases
found such laws unconstitutional. If you cannot criminalize the exercise of Fourth
Amendment rights, you most assuredly cannot impose a sanction, even an administrative
sanction based upon the exercise of those rights.
Chilling of Exercise of Constitutional Right
The U.S. Supreme Court addressed the “chilling effect” under the Fifth and Sixth
Amendments in U.S. v. Jackson, 390 U.S. 570 (1968). In Jackson, the federal kidnaping
statute provided that if a defendant charged with that offense plead guilty, he could not
face the death penalty. However, if a defendant elected to exercise his right to a plead not
guilty under the Fifth Amendment, and exercise his right to a trial under the Sixth
Amendment, the jury could impose the death penalty. The Court found this provision
unconstitutional, and held:
Under the Federal Kidnaping Act, therefore, the defendant who abandons the right
to contest his guilt before a jury is assured that he cannot be executed; the
defendant ingenuous enough to seek a jury acquittal stands forewarned that, if the
jury finds him guilty and does not wish to spare his life, he will die. Our problem is to
decide whether the Constitution permits the establishment of such a death penalty,
applicable only to those defendants who assert the right to contest their guilt
before a jury. The inevitable effect of any such provision is, of course, to discourage
assertion of the Fifth Amendment right not to plead guilty and to deter exercise of
the Sixth Amendment right to demand a jury trial. If the provision had no other
purpose or effect than to chill the assertion of constitutional rights by penalizing
those who choose to exercise them, then it would be patently unconstitutional. But,
as the Government notes, limiting the death penalty to cases where the jury
recommends its imposition does have another objective: It avoids the more drastic
alternative of mandatory capital punishment in every case. In this sense, the
selective death penalty procedure established by the Federal Kidnaping Act may be
viewed as ameliorating the severity of the more extreme punishment that Congress
might have wished to provide.
The Government suggests that, because the Act thus operates “to mitigate the
severity of punishment,” it is irrelevant that it "may have the incidental effect of
inducing defendants not to contest in full measure." We cannot agree. Whatever
might be said of Congress' objectives, they cannot be pursued by means that
needlessly chill the exercise of basic constitutional rights. Cf. United States v. Robel,
389 U.S. 258 ; Shelton v. Tucker, 364 U.S. 479, 488 - 489. The question is not
whether the chilling effect is "incidental" rather than intentional; the question is
whether that effect is unnecessary and therefore excessive. In this case the answer
to that question is clear. The Congress can of course mitigate the severity of capital
punishment. The goal of limiting the death penalty to cases in which a jury
recommends it is an entirely legitimate one. But that goal can be achieved without
1.6 • Traffic Law Update
penalizing those defendants who plead not guilty and demand jury trial. In some
States, for example, the choice between life imprisonment and capital punishment
is left to a jury in every case - regardless of how the defendant's guilt has been
determined. Given the availability of this and other alternatives, it is clear that the
selective death penalty provision of the Federal Kidnaping Act cannot be justified by
its ostensible purpose. Whatever the power of Congress to impose a death penalty
for violation of the Federal Kidnaping Act, Congress cannot impose such a penalty in
a manner that needlessly penalizes the assertion of a constitutional right. See
Griffin v. California, 380 U.S. 609. [emphasis added].
Implied Consent: Is It Unconstitutional? • 1.7
1.8 • Traffic Law Update
Missouri v. McNeely
Implied Consent: Is It Unconstitutional? • 1.9
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Implied Consent: Is It Unconstitutional? • 1.55
1.56 • Traffic Law Update
Chapter 2:
Investigating the
Breath Machine
Joseph D. Hada
Saia & Piatt, PLL
Cleveland, Ohio
Table of Contents
Presentation Web Link ................................................................................................................... 1
Breath Machine Investigation Checklist © ..................................................................................... 3
Traffic, the ugly Ilg case and more.................................................................................................. 5
Investigating the Breath Machine • i
ii • Traffic Law Update
Chapter 2:
Investigating the
Breath Machine
Joseph D. Hada
Saia & Piatt, PLL
Cleveland, Ohio
Presentation Web Link
http://prezi.com/kvcndl7zobkg/?utm_campaign=share&utm_medium=copy&rc=ex0share
Investigating the Breath Machine • 2.1
2.2 • Traffic Law Update
Breath Machine Investigation Checklist ©
Investigating the Breath Machine • 2.3
2.4 • Traffic Law Update
Judge Ken Spanagel
Parma Municipal Court
April 30, 2015
Traffic, the ugly Ilg case and more
Cincinnati vs. Ilg, 2014-Ohio-4258: Ohio SC ruled that Defendant is entitled to
Discovery as to the accuracy of the test machine (here, an 8000). You cannot make a
general attack on the reliability of the machine, but you are entitled to discovery of that
particular machine as to accuracy of THAT machine. Vega is clarified? Or overruled??
Other recent cases of Note:
Lack of Reasonable Suspicion of any crime:
State vs. Dukes, 2nd Dist. 2013-Ohio-1691:vehicle was on city’s “tow list” to tow on
sight-plain view items led to what was a bad search. Defendant was not stopped for
any crime other than that
State vs. Paseka, 6th Dist., 2013-Ohio-2363: on Route 6- deft has option to veer left on
6 or go straight. He went straight ahead and was cited for not using his turn signal. It
was not an intersection so no duty to signal.
State vs. Whitaker, 6th Dist. 2014-Ohio-2220: Anonymous tip of intoxicated ladies in Red
vehicle behind Checkers Bar with children. Police stop while in parking lot. Dash cams
not determinable. Seizure not justified, as there was no evidence of criminal activity.
State vs. Jarosz, 11th Dist., 2014-Ohio-5839: reason for stop was speeding. Officer
testified visual estimate of in excess of 45 mph tried pacing for 12 seconds and claimed
48 in a 40 zone. Dash cam did not corroborate testimony-equal distance not
maintained for pacing.
State vs. Harper, 9th Dist, 2014-Ohio-347: Deft charged with following a tractor trailer
too close. Dash cam contradicted officer testimony. Video showed no vehicle in lane
other than deft and trooper, and although he claimed he was stationary when he saw
violation, dash cam showed he was already behind the defendant in motion.
Mistake of Law not justifying Traffic Stop:
State vs. Babcock, 6th Dist, 2013-Ohio-2366: Deft made U-turn prior to coming to stop
line of red light, and charged with red light violation. Officer was mistaken as to fact, not
law. Also note BG case of Goodwin, which was also in Bowling Green and was car
pulling out of entrance from exit in parking lot
Investigating the Breath Machine • 2.5
State vs. Drushal, 9th Dist., 2014-Ohio-3088:Deft violated (?) stop “at(?) a clearly
marked stop line…”. VC/A said that is ambiguous- at in dictionary means “in, on, or
near.”
Fog Line and over the line:
State vs. Marcum, 5th Dist, 2013-Ohio-2632: though dash cam did not show movement
over line, Officer had no doubt some portion crossed over yellow line. C/A said judge
was correct that no evidence vehicle went over yellow line. M driving on, but not over
yellow line is not a violation
State vs. Parker, 6th Dist., 2013-Ohio-3470: lane violation. C/A said no dash cam or
evidence deft ever crossed over the line of travel before stop. Though sometimes on
the line, was never over the line
State vs. Ross, 9th Dist., 2013-Ohio-1488: OVI dismissed, marked lanes violation
appealed. Dash cam shows no other cars on road and no movement over lines
State vs. Shaffer, 3rd Dist., 2013-Ohio-3581:car his fog line at 3 A.M. for maybe 3
seconds. C/A said without more evidence, it could not find a fog live violation
Informants and Cell Phone Calls:
State vs. Hipp, 5th Dist. 2013-Ohio-1684:Gas Station attendant phoned 911, with only
make, model, and plate, and observation of odor of alcohol on defendant She was
stopped at ATM. Though a reliable informant, insufficient information for reasonable
suspicion to stop for OVI
Motion to Suppress-Procedural Requirements:
State vs. Codeluppi, 139 Ohio St. 154, 2014-Ohio-Court denied MTS without hearing on
stop and Homan issues, stating that deft failed to aver sufficient particularity for Motion
to go forward. Leqal and factual basis must be stated, and this Motion was sufficient to
merit a Hearing. The Defendant must “put the ball in play”
ALS Appeal Issues:
State vs. Harding, 7th Dist., 2014-Ohio-884:ALS form failed to state the reason for
arrest, as in the reason for the stop-allegations of alcohol are not enough.
State vs. Brown, 12th Dist., 2013-Ohio-4981: ALS Appeal on alleged refusal of test was
ruled in favor of Defendant. Defendant could not perform!  Defendant could not
urinate, despite several glasses of water given by police. Inability to perform is
not the same as unwillingness to perform!!
2.6 • Traffic Law Update
OTHER APPELLATE CASES OF NOTE-8TH DISTRICT CASES
Berea vs. Collins, 2014-Ohio-3822: denial of MTS reverses. Officer saw Deft speeding,
followed and he pulled into private drive. Deft then said he would put guitar case on
porch- odor detected, but Deft. Went into house and locked door, and would not open.
Cop forced way into house. The officers were not, as they claimed, in hot pursuit of
Defendant , and even if exigent circumstances, no probable cause to arrest.
Cleveland vs. Jones, 2014-Ohio-4201: Court amended OVI to Phyiscal control on its
own over objection of Prosecutor. Court laced to authority to amend over prosecutors
objection.
Lakewood vs. Armstrong, 2014-Ohio-4219: Judge Stupica in Chardon granted driving
privileges, which Lakewood Judge found sua sponte invalid because of terms (24/7
privilege) Judge cannot sua sponte find the other Court’s Order to be invalid.
Highland Hills vs. Nicholson, 2014-Ohio-4671:visiting Judge removed appointed
counsel and directed Deft to file a Motion explaining why he wanted to represent
himself, which he did not do. Conviction was found to be valid but was reversed and
remande3d for resolving counsel and pro se issues.
Cleveland vs. Ismail, 2014-Ohio-1080: conviction for full time and attention reversed on
cell phone usage. There was no evidence that she failed to reasonably control her
vehicle as a result of cell phone usage. NOTE: This is a FTA case, not a cell phone
ordinance violation.
State vs. Klembus, 2014-Ohio-1830: On a felony OVI, which also included what is
known as a repeat OVI offender specification, C/A said that repeat OVI offender
specification was unconstitutional.
OTHER DISTRICTS RECENT TRAFFIC CASES:
State vs. Cross, 2014-Ohio-1046, 4th Dist.: On another driveway hot pursuit case, C/A
found a “close case”, but reversed and remanded on denial of MTS (deft wewnt into
garage, and inside and may have been ordered to stop by officer).
State vs. Baker, 2014-Ohio-2873, 11th Dist: Blood draw at 1:50 A.M., mailed at 6:00
A.M. and not refrigerated in the interim C/A affirmed granting of MTS of blood result,
finding that time frame was not a de minimus violation of ODH regulations.
State vs. Ali, 2014-Ohio-3757, 6th Dist: Granting of MTS affirmed by C/A. based upon
dash cam and officer’s testimony, no evidence of a marked lanes violation.
State vs. Barzacchini, 2014-Ohio-3467, 5th Dist: C/A reversed denial of MTS. Officer
observed loud audio, audible noise, screaming, etc. from vehicle as it passed, but no
moving violations. Mama B arrived home and said they had argument, and noise and
motions were probably the result of that. C/A found no reasonable suspicion of traffic
violation, and not sufficient evidence to invoke community caretaking function on Deft.
Investigating the Breath Machine • 2.7
Fairfield vs. Eubanks, 2014-Ohio-3781, 12th Dist: Hit Skip conviction reversed. To be
convicted, deft must have knowledge of the crash and then leave. She allegedly
clipped the knee of a bar employee when she left at closing time.
Bennett vs. LeForge, 2013-Ohio-5865, 9th Dist: A conviction of OVI with partie’s child in
car could be considered a change of circumstances as it relates to post decree divorce
issues on child.
State vs. Little, 2014-Ohio-4871, and State vs. Clark, 2014-Ohio-4873, both 3rd Dist:
Deft has reasonable right of privacy as to medical records. ORC 2317.02 and 2317.022
are constitutional to get medical records, but police must comply with the warrant
requirements of 4th Amendment. Those statutes do not permit the warrantless seizure
of Deft’s medical records.
State vs. Maxwell, 2014-Ohio-3062, 2nd Dist: Denial of MTS reversed. Lack of
reasonable suspicion in turning out of entrance of closed military base, or straddling
lanes with signal to change for 50-100 fee.
State vs. Kiriakou, 2014-Ohio-4056, 5th Dist: Denial of MTS reversed. Officer observed
Deft. fail to go through green light for 11 seconds. Some delay after a signal turns
green is not indicative of any criminal behavior.
State vs. Tribble, 2014 – 4164, 7th Dist.-judge fail on allocution to advise on court
community service option. Conviction reversed.
State versus George, 2014 –Ohio 4123, 9th Dist.-conviction reversed. No evidence that
FST’s were done in substantial compliance.
State vs. Jones, 2014 –Ohio-4201, 8th Dist.-Municipal Court has no authority to amend
a charge to a physical control from an OVI over objection of the prosecutor.
State versus Brunty, 201 –Ohi –4307, 11th Dist.-Threat to use force to obtain a blood
sample when a police officer does not have reasonable grounds to believe a person
was operating or in control of a vehicle while under the influence of drugs or alcohol
renders consent given in voluntary.
State vs. Rodich, 2014-Ohio-4399, 6th Dist.-physical control conviction affirmed where
the circumstantial evidence established that appellant had physical control of the
vehicle.
State vs. Rawls, 2014-Ohio-4806, 5th Dist.-a court cannot vacate a mandatory fine
unless an affidavit of indigency is filed at time of sentencing.
State vs. Weideman, 2014-Ohio-5768, 9th Dist.-on an OVI F3 the court was not
permitted to impose a sentence beyond 36 months.
East Liverpool vs. Lawson, 2014-Ohio-5858, 7th Dist.-conviction for laser speed
reversed. The scientific reliability of the unit was never established in this court through
expert testimony or judicial notice
2.8 • Traffic Law Update
Rocky River vs. Brenner, 2015-Ohio-103, 8th Dist- while officer’s visual estimation of
appellant speed was not sufficient to conduct a traffic stop, the officers knowledge that
appellant was driving under suspension was. The Officer who performed the breath test
did not testify at the hearing. No officer testified that the city was in substantial
compliance with oh DH regulation. The court erred by failing to suppress the results of
the breath test.
Cleveland vs. Bucey, 2015-Ohio-107, 8th Dist.-sufficient evidence existed to convict
defendant of U-turn violation, where driver completed U-turn in front of an officer looked
right at him.
Beachwood vs. Chatmon, 2015-Ohio-425, 8th Dist.-on a one-year sentence for two M1
thefts, reversed and remanded because the court did not make the findings required by
R.C. 2929.14©(4).
State vs. Ricks, 2014-Ohio-414, 8th Dist.-appellant’s waiver of counsel on felony
charges was not knowingly, intelligently, and voluntarily made because the court failed
to fully review the charges against him.
State vs. Czech, 2015-Ohio-458, 6th Dist.-the court noted it had “reviewed the
complaint”, which was insufficient for an explanation of circumstances to make a finding
of guilty.
State vs. Dukes, 2015-Ohio-676, 8th Dist.-the state failed to show substantial
compliance with OAC3701-53-05(E) because it failed to show the samples were sealed
in such a manner that tampering could be detected. A biohazard bag, without more, is
not sufficient, and the state failed to show that the samples were properly refrigerated,
and that the lab director had gotten an ODH permit.
Cleveland vs. Peoples, 2015-Ohio-674, 8th Dist.-the hours of community service for
fines must be commeasurate with the fine imposed. The court imposed 300 hours of
community service because defendant could not pay the $200 fine.
State vs. eggleston, 2015-Ohio-958, 11th Dist.-conviction vacated. Defendant was
stopped for a noise violation, a minor misdemeanor. The court found that there was
excessive delay in calling for a K-9 dog. Note: the US Supreme Court ruled on April
21, 2015 that excessive delay cannot be permitted, and an officer must have some
probable cause or evidence to believe that contraband may be present on a traffic
stop. Nebraska vs. Rodriguez.
State vs. Stephens, 2015-Ohio-1078, 3rd Dist.-the third district found that the repeat OVI
offender specification is constitutional, as compared with the eighth district which found
it to be unconstitutional and State vs. Klembus, 2014-Ohio-3327. No word yet on
whether or not the Supreme Court will take up this conflict. The 12th district is also
found it to be constitutional in State vs. Burkhead, 2015-Ohio-1085
I am always available to give guidance:Judge Ken Spanagel,440.887-7473 or by email at
Investigating the Breath Machine • 2.9
[email protected]
2.10 • Traffic Law Update