In State v. Hale, 3d Dist. Marion County, 2023-Ohio-980, Hale was in big trouble, but this note is not about that.

Hale’s aggravated vehicular homicide charge was elevated to a F1 because it was alleged that he was, at the time of the offense, “…driving under a suspension…imposed under Chapter 4510 or any other provision of the Revised Code.”  He was also charged with driving under a 12-point suspension under R.C. 4510.037(J) and driving under an FRA suspension in violation of R.C. 4510.16(A).  At trial, Hale was found guilty of the homicide and both underlying (and elevating) suspensions and sentenced on an F1.

On appeal Hale argued the evidence that he was driving under suspension was insufficient and that his conviction on the F1 must be vacated due to a lack of prerequisite for enhancement.  Without the enhancement the homicide would have been an F2.

The Court of Appeals noted that Hale’s 12-point suspension period ended on December 19, 2017 and the homicide occurred on September 27, 2020.  It said the six-month 12 pt. suspension imposed under R.C. 4510.037 and R.C. 4510.02(B) is terminated by operation of law upon the completion of the period of suspension.  Compliance with the reinstatement requirements of R.C. 4510.038(A)(1)-(3) is not the event that terminates a 12-point suspension.[1]   Hale later failed to continue to maintain proof of FR, which is one of the reinstatement requirements he originally complied with.  Thus, at the time of the homicide he was driving without having maintained proof of FR.  However, his failure to maintain proof of FR did not “reanimate his 12-point suspension such that he could be convicted of driving under a 12-point suspension.”

Hale was not out of the woods on the F1 as he was also convicted of driving under a FRA suspension in violation of R.C. 4510.16(A).

The Court of Appeals determined that since Hale’s insurance was cancelled effective August 23, 2020 and the homicide happened on September 27, 2020 Hale was under an FRA suspension because his proof of FR filed under 4509.01 to 4509.78 no longer fulfilled the purposes for which it was required.  According to the Court, that required the BMV to suspend Hale’s license pending the filing of such other proof under R.C. 4509.66.  Thus, the court affirmed his conviction for driving under an FRA suspension and the F1 homicide.

I am curious about the FRA suspension conviction.  Under R.C. 4509.16 if the period of suspension is over the only way you can be convicted under that statute is if you are required to file proof of FR with the BMV and you have not done so as of the time of operation.  In Hale’s case, his filing requirement arose from a 12-point suspension.  That suspension is a Class D under R.C. 4510.02(B)(4).  Because of that suspension Hale was required to give and maintain (file) proof of FR in accordance with R.C. 4509.45. Under R.C. 4509.45(D) proof of FR shall be maintained for three years from the date of the Registrar’s imposition of the Class D suspension.[2]

Hale’s 12-point suspension ended on December 19, 2017 so it was obviously imposed before that.  The homicide was on September 27, 2020.  The appellate opinion does not state when the 12-point suspension was imposed.  If imposed prior to September 27, 2017 Hale was no longer required to file proof of FR and would not have been subject to a conviction under R.C. 4510.16 and his F1 would have been an F2.

THE ALS AND A 5 DAY HEARING IN CLEVELAND MUNI

Sometimes the Cleveland police will arrest a person for OVI and give the person a citation which contains a date, within 5 business days of the citation, to appear on the 3rd Floor for the initial appearance.  However, if the police do not promptly file the citation with the clerk’s office the date given becomes a “ghost” date.  The unwitting defendant might show up in court and find out he is not on the docket.  Once the citation is filed the clerk will mail him a notice of his initial appearance, which will be later than 5 business days after the arrest.

In City of Cleveland v. Oliver, 8^th Dist., Cuyahoga County, 2024-Ohio-1477 the court of appeals said that the trial court should not have dismissed an OVI for failure to hold an initial appearance within 5 days of arrest as required under R.C. 4511.192(D)(2) and R.C.4511.196(A).  In reaching that conclusion the court stated that the 5-day requirement is not a speedy trial right, but the trial court treated it as such in dismissing the OVI.

Of interest was the court’s statement that it agrees with the reasoning and analysis of cases which distinguished the civil and criminal ramifications of failing to hold a 5-day hearing in an OVI case.  That included a case in which the court denied a motion to dismiss the OVI charge due to a failure to provide a 5-day hearing but held, however, that failure to timely hold the hearing deprives the defendant of due process as related to the ALS.  That court, therefore, terminated the ALS based on the failure to hold an initial appearance within 5 days of the issuance of the citation.  Oliver should be cited in any case in Cuyahoga County where an ALS is imposed and the defendant is not provided an initial appearance within 5 business days of arrest.

PROOF OF PRIOR CONVICTIONS (OVI AND DUS) WHEN PRIOR ELEVATES THE DEGREE OF OFFENSE OR IS AN ELEMENT OF THE OFFENSE

In State v. Miller, 2^nd District, Darke County, 2024-Ohio-2009, the state charged the defendant with OVI and 5 prior OVI convictions within the previous 20 years, a F4.  He was also charged with DUS.

At trial the state introduced an uncertified copy of the Defendant’s LEADS driving record to prove he was driving under suspension and the 5 prior OVI’s.  Counsel objected, the court allowed the evidence and later overruled the defendant’s R. 29 Motion based on insufficient evidence of the priors.  In essence, counsel argued that an uncertified LEADS printout is not sufficient to prove a conviction.  The defendant was convicted and appealed.

A defendant and the state can stipulate to a prior conviction.  Otherwise, whenever it is necessary to prove a prior conviction, “a certified copy of the Entry of Judgment in such prior conviction together with evidence sufficient to identify the defendant named in the Entry as the offender in the case at bar, is sufficient to prove such prior conviction.”  R.C. 2945.75(B)(1).  Alternatively, whenever it is necessary to prove a prior conviction “of an offense for which the Registrar of Motor Vehicles maintains a record, a certified copy of the record that shows the name, date of birth, and social security number of the accused is prima facie evidence of the identity of the accused and prima-facie evidence of all prior convictions shown on the Record.”  R.C. 2945.75(B)(2).

The court of appeals reversed the trial court on the ground that the evidence was insufficient to prove the priors.  It remanded the matter for resentencing after modifying the conviction to a M1 OVI.

NOTE:

Relevant evidence is evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.  Evid. R. 401

Hearsay Exception.  Records…of public offices or agencies, setting forth (a) the activation of the office or agency are not excluded by the hearsay rule.  Evid. R. 803(8)

Authentication.  A record can be authenticated or identified by the testimony of witnesses with knowledge (Evid. R. 901(B)(1)) and self authenticated if it is a certified copy of a public record (Evid. R. 902(4)).

When it is necessary to prove a prior conviction, it can be done by certified copy as set forth in R.C. 2945.75(B)(1) and (2).

[1] R.C. 4510.21 is an offense called failure to reinstate.  It is violated if a person’s period of suspension has expired but the reinstatement requirements have not been met and the person is operating a motor vehicle.  2 point offense.  Discretionary Class 7 suspension.

[2] The three year filing requirement begins on the date the underlying suspension is imposed, not the date it ends.

Methods of Proof (if Defendant does not stipulate OR ADMIT)

RC 2945.75(B) provides two methods, as follows:

• CERTIFIED copy of entry of judgment in prior conviction together with evidence sufficient to identify the defendant named in the entry as the offender in the current case. 

This method must comply with Ohio Crim. R. 32(C).  The entry of conviction must contain the fact of conviction, the sentence, the judge’s signature, and the time stamp indicating the entry upon the journal by the clerk.  State v. Gwen, 134 Ohio St. 3d 284, 2012-Ohio-5046.

A CERTIFIED copy complying with the above method is self-authenticating under Ohio Evid. R. 902(4), Domestic public documents under seal. Extrinsic evidence of authenticity is not required.

The CERTIFIED copy complying with the above method is admissible hearsay under Ohio Evid. R. 803(8), records of public offices or agencies setting forth their activities.

If the CERTIFIED copy complies with the above statute and rule either a court clerk from the court in which the conviction occurred or a police officer can testify concerning the prior conviction.

• CERTIFIED copy from the Registrar, BMV, that shows the name, DOB, and social of the accused is prima facie evidence of his identity and all prior convictions shown on the record. 

Easiest method.  Do not need to comply with Crim. R. 32(C) under this method.

CERTIFIED copy of transcript sent by BMV and printed.  A police officer can identify the record and information concerning the prior conviction.

NOTES:         If proving prior conviction in non-traffic case method 1.  A recent case provided a good review.  State v. Jackson, 9^th Dist. Wayne County, 2023-Ohio-4467.

This post contains a summary and discussion of several cases that have shaped Fourth Amendment search and seizure law related to traffic stops and car searches:

• Robinette II and III– A lawful traffic stop ended. Was consent to search a car given during the subsequent unlawful detention voluntary and the product of free will?
• Caballes – During a lawful traffic stop, a dog sniff is not an unreasonable search if it does not prolong the lawful stop.
• Rodriguez – The mission of a traffic stop is to check a license, registration and insurance proof and determine if
  warrants exist. A dog sniff without voluntary consent after the time in which the mission should
  reasonably be completed is unlawful unless there was reasonable suspicion of criminal activity
  developed during the lawful stop that justified the continued detention.
• A recent Federal District Court decision – Imposing a greater showing by the state to prove voluntariness of
  consent to search a car after a lawful traffic stop is over and the detention continues without
  reasonable suspicion of drug activity.

ROBINETTE II

In Ohio v. Robinette, 519 US 33 (1996), the United States Supreme Court reviewed under what circumstances consent to search a car will be recognized as voluntary if consent is sought
after the conclusion of a lawful traffic stop. Robinette was stopped for speeding. A Deputy took Robinette’s license, ran a computer check which was “clean,” and then returned to Robinette’s car and asked him to step out. The Deputy turned on his dash-cam, warned Robinette about speeding, and returned his license. At that point the Deputy asked Robinette if he had any drugs and if he could search his car. Robinette denied drugs but consented to the search. Drugs were found in the search and Robinette was prosecuted.

Robinette pled “no contest.” He was found guilty, sentenced, and then appealed the trial Court’s ruling denying his motion to suppress the drug evidence. The Supreme Court of Ohio held the search to be unlawful. In its opinion the Court held:

“When the motivation behind a police officer’s continued
detention of a person stopped for a traffic violation is not related to
the purpose of the original constitutional stop, and when that
continued detention is not based on any articulable facts giving rise
to a suspicion of some separate illegal activity justifying an
extension of the detention, the continued detention constitutes an
illegal seizure.”

Second, the Court established a bright line prerequisite for consensual interrogation under the circumstances of the case: “…citizens stopped for traffic offenses (must) be clearly
informed…when they are free to go after a valid detention, before an officer attempts to engage in a consensual interrogation. Any attempt of consensual interrogation must be preceded by the phrase ‘at this time you legally are free to go’.…” The United States Supreme Court decided to review this per se rule and reversed. The Court stated that the “touchstone of the Fourth Amendment is reasonableness.” Reasonableness, in turn, is measured in objective terms by examining the totality of the circumstances. Further, the Court stated that in applying this test we have consistently eschewed bright-line rules, instead emphasizing the fact specific nature of the reasonableness inquiry.

Finally, the Court reiterated what it said in Schneckloth v. Bustamonte, 412 US 218 (1973): “While knowledge of the right to refuse consent is one factor to be taken into account, the government need not establish such knowledge as the sine qua non of an effective consent.” The Court concluded that valid consent to search can be achieved without telling a detainee he is “legally free to go,” as voluntariness required for a valid consent is a question of fact to be determined from all the circumstances. The judgment of the Supreme Court of Ohio was reversed, and the case was remanded.

ROBINETTE III

In State v. Robinette, 80 Ohio St.3d 234 (1997), the Court noted that once Robinette denied having contraband and the traffic stop was completed, further detention to ask if the
police could search his car without a reasonable suspicion of criminal activity was unlawful. However, in light of the United States Supreme Court’s opinion, the Court stated it had to address whether consent, determined under the totality of the circumstances, validated an otherwise illegal detention and search. It quoted from Royer that the state has the burden of proving that the necessary consent was obtained and that it was “…freely and voluntarily given, a burden that is not satisfied by showing a mere submission to a claim of lawful authority.”
As stated by the Court, the Deputy advised Robinette that he was letting him off with a warning but without any break in the conversation asked about contraband, which Robinette
denied possessing. The Deputy then asked if he could search Robinette’s car. The Deputy’s words implied that Robinette was not free to go. Further, the Court noted the officer’s superior
position of authority as another factor that any reasonable person would have felt compelled to submit to the questioning.

On remand, the Supreme Court of Ohio disavowed its initial ruling that an officer must tell a person stopped for a traffic violation that he or she is free to go at the end of the stop before
trying to get consent to search a car. It held that once a person has been unlawfully detained, for consent to be considered an independent act of free will, the totality of facts must clearly
demonstrate that a reasonable person would believe that he or she had the freedom to refuse to answer further questions and could in fact leave. The Court concluded that Robinette did not voluntarily consent to the search of his car and that the evidence seized was inadmissible.

RODRIGUEZ

Nearly 20 years after Robinette, the United States Supreme Court decided Rodriguez v. United States, 575 U.S. 348 (2015). The Court began its opinion by noting that in Illinois v.
Caballes, 543 U.S 405 (2005) it held that a dog sniff conducted during a lawful traffic stop was not an unreasonable seizure. This is because although it was an investigation unrelated to the
traffic stop it did not lengthen the roadside detention (the time reasonably required to complete the mission of the original stop). In Rodriguez, the defendant was stopped in Nebraska for a minor traffic violation. The officer who stopped him was a K-9 officer and he was accompanied by his dog, Floyd. The officer gathered Rodriguez’s license, registration, and proof of insurance. He also obtained the passenger’s license. He ran a records check of both (clean) and questioned them about their travels. At that point the officer returned the documents and gave Rodriguez a warning. The officer then asked for permission to walk his dog around Rodriguez’s car. It was denied but Rodriguez was ordered to exit the car and Floyd walked around it. As it turned out, Floyd alerted to the presence of drugs about eight minutes after the warning was issued. The resulting search revealed meth.

Rodriguez was convicted and his (overruled) motion to suppress made its way to the United States Supreme Court. The Court wanted to resolve the question whether police can
routinely extend an otherwise completed traffic stop, absent reasonable suspicion, in order to conduct a dog sniff. The Court reviewed some of its prior pronouncements of law. Like a Terry stop, the tolerable duration of police inquiries in the traffic-stop context is determined by the seizure’s “mission” – to address the traffic violation that warranted the stop. Caballes- the scope of the detention must be carefully tailored to its underlying justification. Florida v. Royer, 460 U.S. 491 (1983); authority for the seizure ends when tasks tied to the traffic violation are – or reasonably should have been – completed. United States v. Sharpe, 470 U.S. 675 (1985). As stated in Rodriguez, an officer’s “mission” (during a traffic stop) includes ordinary
inquiries incident to the stop. Such inquiries involve checking the license, determining the existence of warrants, and inspecting the car’s registration and proof of insurance. Delaware v.
Prouse, 440 U.S. 48 (1979). A dog sniff, by contrast, is aimed at detecting evidence of ordinary criminal wrongdoing.

The Court concluded that a traffic stop prolonged beyond the amount of time reasonably required to complete the stop’s mission is unlawful. “The critical question, then, is not whether
the dog sniff occurs before or after the officer issues a ticket…but whether conducting the sniff “prolongs” – i.e., add time to – the stop.” The Court remanded the case to the Court of Appeals to determine whether reasonable suspicion of criminal activity justified detaining Rodriguez beyond completion of the traffic violation investigation.

Juxtaposing the opinions in Robinette and Rodriguez an obvious question is how the police may validly obtain consent to search a car pursuant to a lawful traffic stop. If the police ask for consent to search before completing the stop, the person giving consent may well feel that the officer’s decision as to whether to issue a citation may turn into whether consent is given. If so, this would seem to make the consent to search involuntary (given in submission to authority). On the other hand, if the officer waits to ask for consent until after the traffic stop is completed, he has run afoul of Rodriguez by prolonging the stop for a purpose unrelated to the stop. The solution would seem to be for the officer to tell the person that the stop is completed and that he is free to go. The officer could then ask for consent to search, and it would likely be viewed as voluntary. The problem with this analysis is that in Robinette the United States Supreme Court said that valid consent to search under similar circumstances might be established under the totality of facts without telling a detainee he is “free to go.”  A Federal District Court Judge recently addressed the voluntariness of consent to search cars in a decision challenging a practice known as the “Kansas Two Step.”

“THE KANSAS TWO STEP”

In Kansas, State Troopers have long engaged in a practice known as the “Kansas Two Step.” In essence, after Troopers finish a traffic stop by issuing a warning or a ticket they start to walk away, then turn back to talk more to the motorist. Just before they do the “Two Step” they are trained to end the initial stop with phrases like “have a safe trip,” “take care,” or “have a good day.” They are also trained not to inform motorists that they are free to go. One goal of the “Two Step” is to make it look like there is no longer a detention, that the subsequent inquiries (looking for reasons to search their cars for drugs) are consensual, and to give a drug dog time to get to the scene. Typically, the practice is used on out of state drivers from states that permit recreational or medical marijuana.

The ACLU filed two separate lawsuits on behalf of drivers who were subjected to the “Two Step.” In July, 2023 Senior U.S. District Judge Kathryn Vratil issued a scathing 79-page order declaring the “Two Step” violates motorists’ constitutional right against unreasonable searches. Google the “Kansas Two Step” and you will find the decision.

In some instances, the Court said that after evaluating the totality of the circumstances the Troopers did not have reasonable suspicion to detain drivers for a canine sniff. She noted that the factors Troopers used to justify having a reasonable suspicion about a possible drug crime – such as a motorist’s travel plans – “are so ordinary and benign” that they could apply to thousands of drivers. Further, when Troopers executed the “Two Step” many reasonable drivers would not feel free to leave. Rather, they would believe they were still detained. In such cases the Court found the continued detention was unlawful. Judge Vratil notified the Kansas Highway Patrol that she is ready to impose changes in their policing practices. They would include a requirement that Troopers specifically inform motorists they stop that they have a right to reject a search or to revoke consent to one at any time.

Andre Sanford was in a crash in October 2016.  He struck a motorcycle, killing the driver and left the scene.  An hour later he surrendered, admitted that he had been drinking and smoking weed, and submitted to a blood test.  Sometime later the test results indicated a prohibited amount of marijuana metabolites in his system.  In December 2016 he was indicted on many charges including aggravated vehicular homicide as a result of OVI (impaired or per se).  Sanford was arraigned on January 9, 2017 and released on bond that day after spending 95 days in jail.

Sanford sought to dismiss the charges on the basis of a speedy trial violation.  Under R.C. 2945.71, a person facing a felony generally must be brought to trial on a felony with 270 days of arrest and is entitled to three days of credit for every day of incarceration.

To spare confusion, the focus of this post is on the aggravated vehicular homicide charge predicated on the per se violation.  The state argued that the original speedy trial clock does not apply when additional charges “arise from facts different from the original charges,” or the state did not know “of the facts at the time of the original charges.”  The trial court declined to dismiss the OVI and vehicular homicide charges but dismissed the rest.  Sanford pleaded no contest and appealed.  The Ninth District ruled that the state had all of the information it needed at the time of the arrest to charge OVI (impaired) and vehicular homicide predicated on reckless operation. It affirmed the OVI (per se) conviction and the vehicular homicide conviction predicated on OVI (per se).

The Supreme Court of Ohio stated that when the state does not have all the information necessary to charge a crime at the time of arrest a new speedy trial time period begins when that crime is later charged.  As noted by the Court in making a fact dependent determination “A driver might admit to consuming marijuana, but he cannot admit to the amount of marijuana metabolites that are in his bloodstream.”  Further, while a police officer might suspect a person is over the limit, it is the toxicology results that constitute new information unknown to the state at the time of the original charge.  Thus, as to the OVI (per se) and vehicular homicide predicated on the OVI (per se) charges, Sanford’s speedy trial rights were not violated after 90 days in jail.