Bond Reform and Crim. R. 46 Changes

Posted on August 27, 2020 by Judge Deborah J. Nicastro

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 →

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What Happened to BMV Random Selection Suspension?

Posted on August 18, 2020 by Robert Walton, Esq.

The BMV used to mail out random letters to Ohio drivers requiring them to provide current proof of financial responsibility.  If the driver failed to respond or did not have proof of financial responsibility the first time, his license was suspended until he filed an SR-22 certificate and paid a $150.00 reinstatement fee.  By a third violation, the license suspension was 2 years and a $600.00 reinstatement fee.  To the driver with proof, the process was irksome.  To the economically disadvantaged driver without proof, the process was another financial burden that compounded rather than helped to reduce the number of uninsured drivers in Ohio. Fortunately, Ohio abolished the random selection suspension as of July 3, 2019.

 

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The Statutory Definition of “Operate” Applies to Operating Under the Influence and Operating Under a License Suspension

Posted on August 6, 2020 by Judge Deborah J. Nicastro

The First District Court of Appeals recently established that the same statutory definition of “operate” applies to both OVI and DUS.

R.C. Title 45 governs motor vehicles. The entire title contains only one definition of the word “operate”. That definition is found in R.C. 4511.01 (HHH). According to the introductory language to the definitions in that section, the terms defined apply in Chapters 4511 and 4513.  R.C. Chapter 4510 includes several offenses for operating motor vehicles under various types of suspension, but it does not define the term “operate”. For that reason, some courts have found that the term “operate” has a different meaning under Chapter 4510 than it does under Chapter 4511. Continue reading →

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The Reasons Why A Search Warrant Is Required To Obtain Blood-Alcohol Test Records From A Hospital

Posted on July 23, 2020 by Robert Walton, Esq.

Submitted by Co-Authors Robert G. Walton and Gretchen Ebner

The Relevant Evidentiary Statutes

R.C. 4511.19(D)(1)(a) provides, in part, that in a criminal prosecution for a violation of R.C. 4511.19(A)(1)(a) or its equivalent (impaired driving) the result of any test of any blood withdrawn and analyzed by a health care provider may be admitted with expert testimony to be considered with any other relevant and competent evidence in determining the guilt or innocence of the defendant. This is known as a test administered for medical purposes.

R.C. 4511.19(D)(1)(b) provides, in pertinent part, that in a criminal prosecution for a violation of R.C. 4511.19(A) or (B) or their equivalent (impaired driving or per se offense), a court may admit evidence of the concentration of alcohol in the defendant’s blood or other bodily substance at the time of the alleged violation, as shown by chemical analysis of the substance withdrawn within three hours of the alleged violation. The court may admit the evidence when a person submits to a blood or other bodily substance test at the request of a law enforcement officer under 4511.191 (implied consent), if the person gives actual consent to the officer, or the sample is obtained pursuant to a search warrant. The bodily substance withdrawn under this subsection must be analyzed in accordance with methods approved by the ODH by a person possessing a valid permit issued by the Director of Health. This is known as a test administered at the request of law enforcement for forensic purposes.

The language of the above-referenced subsections is clear and unambiguous and the provisions of each must be read in pari materia. Applying those principles, legal scholars have had no difficulty understanding the differences between the subsections and applying the relevant law to the facts. Continue reading →

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What You Need to Know about BMV Security Suspensions.

Posted on July 15, 2020 by Robert Walton, Esq.

Failure to comply with R.C. 4509.06 by providing proof of financial responsibility after an accident results in a non-compliance suspension but also a separate security suspension. The BMV sends the non-compliant person a notice that he is required to make a security deposit to the BMV in an amount of the estimated injury or property damage as determined by the BMV. The failure to do so results in a security suspension under R.C. 4509.17. Continue reading →

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