SPEEDY TRIAL CHEAT SHEET for Criminal Defense Attorneys and Prosecutors.
By Chris Greene, Esq. with assistance from Robert Walton, Esq. (5-11-21)
SPEEDY TRIAL CHEAT SHEET for Criminal Defense Attorneys and Prosecutors.
By Chris Greene, Esq. with assistance from Robert Walton, Esq. (5-11-21)
By Shaker Heights Municipal Court Magistrate Anne Walton-Keller
Recently the Supreme Court of Ohio decided that a trial court, pursuant to R.C. 2941.51(D), may order a criminal defendant to pay his or her court-appointed-counsel fees without first articulating explicit findings about the defendant’s ability to pay. State v Taylor, 2020-Ohio-6786. Taylor was ordered to pay $130 to the assigned-counsel-budget fund, which was listed in both “financial obligations” and the “reimbursement payable” sections of Taylor’s sentencing entry, along with the supervision fee and court costs. The case found its way to the Supreme Court of Ohio due to a conflict amongst the appellate districts.
The Court held that the trial court has the authority to impose court-appointed-counsel fees when a defendant reasonably may have the means to pay some part of the cost of the representation provided. The Court also determined that R.C.2941.51(D) does not require the trial court to make explicit findings on the record prior to the assessment of those fees. The Court explained that the court-appointed-counsel fees cannot be imposed as a part of a defendant’s sentence. However, those fees, if assessed, should be ordered at the time of sentencing and may be listed separately in the sentencing entry as a civil matter. The Court noted that the best practice is to include such fees in a separate entry. Additionally, court-appointed-counsel fees are not limited to a person convicted of a criminal charge. Rather, they can be imposed regardless of the dispositions of a person’s case.
The trial court in Taylor appropriately assessed the fees at the sentencing hearing but improperly characterized the fees as “financial obligations” and as “reimbursement” in the sentencing entry. Court-appointed-counsel fees cannot be “reimbursement” in the criminal context, because reimbursement refers to “costs.” See R.C. 2929.18(A)(5)(a). R.C. 2941.51 plainly states that court-appointed-counsel fees shall not be assessed as costs.
Counsel might wish to add the forgoing to the long list of items he or she can inform the client of during the course of representation. That list includes the effect of a certain plea, the possible consequences of conviction related to non-citizen status, potential penalties, enhancement of punishment or degree of offense for similar offenses, restitution for economic loss, failure to show proof of insurance in a traffic matter, sealing of records, and denial of entry to another country for certain convictions.
Judge Nicastro and Robert Walton published the 6th Edition of the Ohio Driver’s License Reinstatement Handbook today. The new edition explains the Ohio Bureau of Motor Vehicles’ permanent debt reduction and amnesty program, omits several repealed suspensions and summarizes some relevant case law. Although limited, the case law in this area is illuminating.
State v. Caskey, Sixth Dist., Lucas County, 2018-Ohio-116
Caskey filed a petition in a municipal court seeking to vacate a non-compliance suspension and a security suspension arising out of an accident he caused while uninsured. The state filed a motion to dismiss, arguing that the court lacked subject matter jurisdiction over the issue of the suspensions. The state cited ORC §119.12(A)(1), which provides that “any party adversely affected by an order of an agency. . .suspending a license. . .may appeal the order. . .to the court of common pleas of the county in which . . .the licensee is a resident.” The trial court granted the state’s motion to dismiss and Caskey appealed. The court of appeals correctly stated that ORC §4510.73 was enacted after ORC §119.12, and the grant of concurrent jurisdiction thereunder (to adjudicate all issues and appeals regarding non-commercial driver’s license matters) applies “notwithstanding any provision of the Revised Code to the contrary.” The appeals court determined that the trial court erred in concluding it lacked subject matter jurisdiction over appellant’s ORC §4510.73 petition and reversed the judgment of dismissal.
By Magistrate Anne Walton Keller, Shaker Heights Municipal Court
On December 22, 2020 the Supreme Court of Ohio resolved a conflict amongst courts of appeal regarding traffic law by deciding State v. Turner, 2020-Ohio-6773. The 12th District Court of Appeals certified the issue in conflict as: “Does an officer have a reasonable suspicion to conduct a traffic stop of a motor vehicle for a marked lanes violation under R.C. 4511.33(A)(1) when the officer observes the tires driving on, but not across a marked lane line?”
Facts and Procedural History
A State Trooper stopped Turner’s car after he observed the right side tires of Turner’s car touch the right fog line. Turner was cited for a marked lanes violation. The Trooper then arrested Turner for OVI. Turner filed a Motion to Suppress on basis that the stop was unlawful. Although the trial court believed the Trooper’s testimony, it granted the Motion to Suppress because touching the lines did not establish a lawful basis for the stop.
The 12th District Court of Appeals reversed. The majority determined that the language of the statute clearly established that a marked lanes violation occurs if a driver is not fully inside or entirely within a single lane of traffic. After holding the Trooper’s suspicion reasonable it declined to address the State’s alternative argument that the stop was lawful because the Trooper made a reasonable mistake of law.
The 12th District certified its judgment as being in conflict with judgments from many other Districts. However, the Supreme Court noted that the only judgments that were in conflict were those which held stops unlawful if a car only drove on or touched a fog line (not over). The Court stated that its holding did not address other types of alleged marked lanes violations such as “centerline” cases.
Holding
Based on language of R.C. 4511.33(A)(1), the definitions in R.C. 4511.01, and the statutory scheme as whole, the Court held that the single solid white longitudinal line on the right edge of the roadway (fog or edge line) merely discourages or prohibits a driver from crossing it. It does not prohibit driving on or touching it.
The Court reversed the judgment of the 12th District and remanded the case to that court on the issue raised by the State as to whether the trooper reasonably believed that Turner violated the law when he drove on the fog line, making the stop lawful.
Analysis
To resolve the issue the Court turned to statutory construction. In construing a statute a court does not ask what the legislature intended to enact, but what is the meaning of that which it did enact. When the language of a statute is plain and unambiguous there is no need for a court to apply rules of statutory interpretation. To determine the plain meaning of a statute, a court relies on definitions provided by the legislature.
R.C. 4511.33(A)(1) is part of a statutory scheme. The meaning of the roadway marking at issue and the movement permitted by that marking, is clear when that statute is considered in the context of the relevant definitions in R.C. 4511.01.
Under R.C. 4511.09, ODOT has authority to adopt a manual for a uniform system of traffic control devices. ODOT adopted the Manual of Uniform Traffic Control Devices (MUTCD). R.C. 4511.10 gives ODOT authority to place and maintain traffic control devices conforming to its manual and specifications upon all highways as necessary to indicate and carry out R.C. 4511.01 to 4511.78. Traffic control devices are defined under R.C. 4511.01(QQ) and include markings used to warn or guide traffic. Because the legislature gave ODOT authority to regulate marked lanes of traffic, the Court turned to the MUTCD for guidance. The Court then examined several sections of the MUTCD pertaining to markings, including one that contains a provision that the general function of a solid longitudinal line is to discourage or prohibit crossing.
R.C. 4511.33(A)(1) provides that “whenever any roadway has been divided into two or more clearly marked lanes for traffic…a vehicle shall be driven, as nearly as practicable, entirely within a single lane or line of traffic…” The road markings, as set forth in the MUTCD, define the bounds of the clearly marked lanes. The Court stated that under the MUTCD, a standard marking can be used only to convey the meaning prescribed for that marking in the MUTCD. In the instant case, the single solid white longitudinal line as used on this two-lane, two-way highway served only to mark the right-hand edge of the road and that marking only discourages or prohibits crossing it, not driving on it. Therefore, Turner’s touching of the fog line was not a marked lanes violation.
As to other types of alleged “clearly marked lanes violations,” it appears that the same analysis will be utilized.
Often, a person who has been detained (Terry stop, traffic stop) is “in custody ” for Miranda purposes before a formal arrest occurs. That is important because the procedural safeguards adopted by Miranda become necessary once a defendant is taken into custody. Continue reading
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. Continue reading
State v. Homan, 89 Ohio St.3d 421, R.C. 4511.19(D)(4), and State v. Schmitt, 101 Ohio St.3d 79 piece together when the state can introduce evidence (through testimony and video) concerning the results of standardized field sobriety tests (SFST’s) in any criminal prosecution for OVI. Simply stated, the standard for consideration of the results on the issue of probable cause for arrest or admissibility of the results at trial is “substantial compliance.” Specifically, the state must show by clear and convincing evidence that the officer administered the test(s) in substantial compliance with the testing standards (contained in NHTSA’s DWI Detection and Standardized Field Sobriety Testing Manual) for any reliable, credible, and generally accepted field sobriety tests (the HGN, Walk And Turn and One Leg Stand) that were in effect at the time the tests were administered (currently, the Manual revised in February, 2018). As it relates to trial, upon such a showing the officer may testify concerning the results, and the prosecutor may introduce the results as evidence if the testimony or evidence is otherwise admissible under the Rules of Evidence. If the court admits the testimony or evidence the trier of fact shall give it whatever weight it considers to be appropriate (and a jury instruction should be given which informs the jurors that they determine the weight, and does not invade the province of the jury to be the sole fact finder). Continue reading
One of the primary concerns of a person who has been arrested for OVI is the administrative license suspension (ALS) imposed against the driver’s license for refusing or “failing” a chemical test. The ALS is authorized under R.C. 4511.191, Ohio’s “Implied Consent” statute. This post is meant to generate some ideas, through the use of advocacy and the law, for successfully appealing an ALS. Continue reading
Challenging Admissibility and Weight of BAC and SFST Results
Just because the results of a breath or blood alcohol concentration test and/or the results of Standardized Field Sobriety Tests (SFST’s) are determined to be in substantial compliance under their respective statutory exclusionary rules does not mean that the admissibility of such results cannot be challenged on other grounds, nor does it preclude an attack on the weight and credibility of that evidence if it is admitted. Continue reading
By Magistrate Anne Keller of the Shaker Heights Municipal Court
On July 1, 2020 significant changes to Crim. R. 46 became effective. Even the title was changed. Now titled, “Pretrial Release and Detention,” some of the changes to the Rule are due to the need to remove the disparity caused by financial conditions of bond. The amended Rule requires a court to consider pretrial release for a person on the least restrictive conditions that the court believes will reasonably assure the person’s appearance in court and protect the community. Although there was consideration of requiring the use of an objective risk assessment tool, ultimately the Supreme Court removed any requirement for use of such a tool. Continue reading