The 8th District reaffirms that the maximum sentence for a third-degree felony OVI without a specification conviction is 3 years while the 5th District holds there is reasonable suspicion to stop a bicyclist who rides in the middle of the road, then rides into an OVI checkpoint, but jumps out of the checkpoint by riding his bicycle over the curb and on to the sidewalk.
October 1, 2015
After Semenchuk pleaded guilty to a violation of R.C. 4511.19(A)(1)(a), a third-degree felony pursuant to R.C. 4511.19(G)(1)(e), the trial court issued a sentence of five years imprisonment, community control, and a fine of $1,350. On appeal, an issue was raised with respect to his sentence. The Court addressed arguments raised by the parties, pointing point out that with respect to specification sentences, the Ohio Supreme Court, "held that an offender convicted of a third-degree felony OVI and the repeat-offender specification is subject to (1) a one- to five-year mandatory, consecutive prison sentence under the specification, and (2) an additional discretionary term of 9 to 36 months for the underlying OVI conviction pursuant to R.C. 2929.14(A)(3). State v. South, Slip Opinion No. 2015-Ohio-3930"
The 8th District pointed out, however, that Semenchuk was never convicted of the specification. Therefore, it concluded, "The maximum prison sentence the trial court could impose in this case is the mandatory 60-day prison term set forth in R.C. 4511.19(G)(1)(e) and 2929.13(G)(2), along with any additional term for a basic felony-three sentence pursuant to R.C. 2929.14(A)(3) up to a maximum aggregate sentence of three years." The Court rejected other appeals issues raised and remanded the case for resentencing.
[NOTE: After a motion for reconsideration, the Court vacated this decision and on December 24, 2015 entered a new decision in State v. Semenchuk, 2015 Ohio 5408 (8th Dist), http://www.supremecourt.ohio.gov/rod/docs/pdf/8/2015/2015-Ohio-5408.pdf. There were no substantive changes to the summary described above.]
November 16, 2015
While an OVI checkpoint was being operated, Hemela road a bicycle into the restricted area, passed three or four cones and then traveled over the curb and onto the sidewalk. An officer stopped him, noted signs of intoxication, and ultimately Hemela was charged with an OVI.
Hemela filed a motion to suppress, ultimately challenging the constitutionality of the checkpoint as applied to a non-motorost and regarding whether the stop was support by reasonable suspicion. After reviewing law concerning the standard of review, the 5th District summarized Fourth Amendment law:
The detention of an individual by a law enforcement officer does not violate the Fourth Amendment to the United States Constitution or Section 14, Article I of the Ohio Constitution if there are, at the very least, "specific and articulable" facts indicating the detention was reasonable. See, State v. Chatton, 11 Ohio St.3d 59, 61, 463 N.E.2d 1237 (1984); Terry v. Ohio, 392 U.S. 1, 21-22, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). To justify an investigatory detention, a law enforcement officer must "demonstrate specific and articulable facts which, when considered with the rational inferences therefrom, would, in light of the totality of the circumstances, justify a reasonable suspicion that the individual who is stopped is involved in illegal activity." State v. Correa, 108 Ohio App.3d 362, 366, 670 N.E.2d 1035 (1995); Terry, supra.
The 5th District held that there was reasonable suspicion here due to Hemela "riding in the middle of the road, then voluntarily entering the checkpoint but jumping out of the checkpoint line by riding his bicycle over the curb and on to the sidewalk."