In cases where the facts make it appropriate, the following sets forth a framework for excluding evidence of a refusal as proof of guilt in an OVI case and as proof of the element of refusal in an OVI-refusal with a prior OVI in the past 20 years case.
Defendant is charged with OVI and OVI-refusal with a prior in the last 20 years. This Motion seeks to exclude evidence of his refusal to submit to a chemical test on separate grounds.
On November 20, 2020, the police conducted an investigation of Defendant. During the course thereof, Ptl. One arrested Defendant for OVI. After the arrest, Ptl. Two transported Defendant to the jail. At the jail, Ptl. Two read the relevant portions of the BMV 2255 (consequences of refusing or submitting to a chemical test) to Defendant. As Ptl. Two was not the arresting officer, he was not authorized under R.C. 4511.191 or R.C. 4511.192 to read those consequences to Defendant. Further, he signed section F of the BMV Form 2255 as the arresting officer, an act which constituted an untrue certification. See BMV Form 2255, a copy of which is attached hereto as Defendant’s Exhibit “A.” After the consequences were read to Defendant, he asked to be able to contact someone for the purpose of obtaining counsel before making his decision to refuse or submit to a test. A jailer noted the late hour and told Defendant that he was an adult and can make his own decisions. Without benefit of being able to communicate with counsel, Defendant refused to submit to a chemical test.
The trial court’s authority to consider a motion in limine is found in Ohio Evid. R. 611(A), which recognizes a court’s general authority to control the presentation of evidence. Further, Ohio Evid. R. 104(A) provides that preliminary questions concerning the admissibility of evidence shall be determined by the court.
While a ruling on a motion in limine is tentative it has an important function. The trial court may prohibit opposing counsel or his witnesses from attempting to introduce the evidence or from referring to it until the court has had an opportunity to rule on its admissibility. In State v. Grubb, 28 Ohio St.3d 199 (1986), the Ohio Supreme Court wrote:
Thus, a motion in limine, if granted, is a tentative interlocutory, precautionary ruling by the trial court reflecting its anticipatory treatment of the evidentiary issue. In virtually all circumstances finality does not attach when the motion is granted. Therefore, should circumstances subsequently develop at trial, the trial court is certainly at liberty “…to consider the admissibility of the disputed evidence in its actual context.”
First Ground: Because Defendant was Not Permitted to Consult with Legal Counsel in Deciding Whether to Submit to a Chemical Test, His Refusal Must Be Excluded From Evidence.
In Columbus v. Maxey, 39 Ohio App.3d 171 (1988), the Franklin County Court of Appeals considered the issue of whether the refusal to submit to a chemical test could be used as evidence at trial. Therein, the defendant claimed that he refused due to his desire to consult with counsel about whether to submit to a test. There was evidence that defendant’s request to talk to counsel was denied. The Court noted that when a person arrested for OVI makes a request in good faith to speak to an attorney prior to deciding whether to submit to a chemical test and that request is denied, the subsequent refusal cannot be used as evidence. As noted by the Court, a refusal under such circumstances is not based on consciousness of guilt.
In State v. Rodeheffer, 61 Ohio Misc.2d 576, Sidney Municipal Court (1991), the defendant was asked to submit to a chemical test after his OVI arrest. He indicated his desire to consult with an attorney. Shortly after 1:00 a.m., he tried to reach his lawyer but was unsuccessful in that regard. About thirty minutes later, the arresting officer decided he had refused. The Court found that there was no refusal in a legal sense and granted defendant’s motion in limine to exclude evidence of a refusal.
Significantly, R.C. 2935.20 mandates that after a person is arrested the person shall be permitted forthwith facilities to communicate with any person of his choice for the purpose of obtaining counsel. A failure to honor that request followed by a refusal to submit to a chemical test should require the exclusion of evidence of a refusal at trial. See McNulty v. Curry, 42 Ohio St.2d 341 (1975).
In the instant matter, it is clear that Defendant wanted to communicate with someone in order to consult with counsel after he was read the consequences of refusing or submitting to a chemical test. In response, a jailer told him he was an adult and told him he can make his own decisions. His refusal was made in good faith and does not evidence consciousness of guilt. Its probative value would be substantially outweighed by the danger of unfair prejudice, and it must be excluded under Evid. Rule 403(A).
Second Ground: Because Law Enforcement Failed to Advise Defendant in Accordance with R.C. 4511.192 of the Consequences of Refusing or Submitting to a Chemical Test, His Refusal is Also Inadmissible to Prove an Essential Element of R.C. 4511.19(A)(2).
Defendant has one prior OVI conviction. A prior conviction is only an element of an offense if it enhances the degree of the offense or it is specifically made an element of the offense. If a prior conviction is not an element of an offense and affects only the penalty for the offense it is strictly a sentencing consideration for the court. In cases where the prior is not an element of the offense its existence is so inflammatory that it should not be revealed to a jury. The undeniable effect of such information is to incite the jury to convict based on past misconduct rather than restrict their attention to the case at hand. In such a case a court’s admonitions to the jury that the prior should not be considered on the issue of guilt on a present OVI charge is insufficient to cure the error arising out of permitting evidence (by way of stipulation, testimony and/or records) of the prior to be made known to the jury. The probative value of the evidence is minimal compared to its unfairly prejudicial impact on a defendant. State v. Allen, 29 Ohio St.3d 53 (1987).
In the instant matter, Defendant is charged with OVI under R.C. 4511.19(A)(1)(a), and OVI with a refusal and a prior OVI within 20 years in violation of R.C. 4511.19(A)(2). The first ground of this Motion seeks to exclude his refusal to submit to a chemical test as evidence of guilt on the OVI charges. The second ground asks that evidence of his refusal be excluded as proof of an element of R.C. 4511.19(A)(2). Specifically, to prove that charge the city must prove that in addition to being OVI and having a prior OVI in the past 20 years, Defendant “Subsequent to being arrested…being asked by a law enforcement officer to submit to a chemical test …under section 4511.191…, and being advised by the officer in accordance with section 4511.192…of the consequences of the person’s refusal or submission to the test…refuse to submit to the test…” See R.C. 4511.19(A)(2)(b).
As set forth above, the arresting officer did not advise Defendant of the consequences. In order to advise a person of the consequences in accordance with R.C. 4511.192 the arresting officer must be the person who reads them. See 4511.192(A), 4511.192(B), and the form referred to in that subsection, BMV form 2255 (Defendant’s Exhibit “A”). In fact, the arresting officer must read the form to the arrested person before that person can even be asked to submit to a chemical test under implied consent. See R.C. 4511.192(B).
R.C. 4511.19(A)(2) is a section of the Revised Code which defines an offense and shall be strictly construed against the state and liberally construed in favor of the accused. See R.C. 2901.04(A). Based upon the facts, the clear language of the offense statute and R.C. 4511.192, and the express language of the statutory rule of construction, it is beyond contradiction that law enforcement failed to advise Defendant of the consequences of refusing or submitting to a chemical test in accordance with R.C. 4511.192. Thus, it is impossible for the city to prove an essential element of R.C. 4511.19(A)(2). Further, evidence of the refusal for the purpose of proving that element must be excluded prior to trial. Otherwise, the jury would also hear about another element of that offense, the prior OVI. Simply stated, because the offense which contains as elements a prior OVI and advice of consequences in accordance with R.C. 4511.192 cannot be proved, there is no permissible purpose for allowing the jury to hear about the prior. Making the defense wait until a Crim. R. 29 motion can be made will be too late to cure the unfairly prejudicial effect that evidence of a prior would cause.