DUI Appeals Report 12/17/15

The 5th District holds that a police officer can detain a driver after an alleged hit and skip even when there is no obvious damage to the vehicles, and a person refuses a urine test when only attempting to provide a sample for 5 minutes without asking to try again; the 10th District rejects a constitutional challenge to the per se marijuana OVI statute; the 5th District concludes there is reasonable suspicion to conduct field sobriety tests when there are driving violations, eyes were bloodshot and glassy, there was an odor of alcohol coming the vehicle and the defendant outside of the vehicle, it was 11:35 p.m. on a Friday evening, and the defendant admitted to just leaving a bar; and the 11th District uses res judicata to reject constitutional challenges to the OVI specification when brought on a motion for post-conviction relief.

State v. Boyer, 2015 Ohio 4951 (5th Dist.).


November 25, 2015

After receiving a report of a vehicle leaving the scene of an accident after rear ending another vehicle, the police pulled Boyer over when they matched her license plates.  Boyer denied rear ending the other vehicle, claiming the other vehicle had backed into her vehicle.  While questioning Boyer, the officer noted signs of impairment, conducted field sobriety tests, and placed Boyer under arrest.

Boyer was acquitted of leaving the scene of an accident though convicted of OVI, refusal to submit to chemical testing, and assured clear distance.  Boyer appealed, arguing that the police officer could not continue to detain her for sobriety testing after observing no damage or injury.  The Fifth District rejected this argument, in part because it found there remained sufficient reason to detain for an assured clear distance violation and because the court declined to "hold that the officer cannot detain the driver to obtain a driver's license and proof of insurance simply because there is no obvious damage to either vehicle on a cursory examination."  The Fifth District pointed out that it has held that damage as little as $1.00 is sufficient for a leaving the scene conviction.  State v. Maioriello, 73 Ohio App.3d 350, 597 N.E.2d 185 (5th Dist. Stark 1992).

After the Fifth District rejected an evidentiary argument raised by Boyer regarding the admission of medical diagnoses without an expert witness, the court evaluated her argument that it was against the manifest weight of the evidence to conclude that she refused a test, when she was instead unable to urinate.  The court first reviewed the following case law:

A refusal to submit to a chemical test of the blood, breath or urine will occur where a person, by his acts, words or general conduct, manifests an unwillingness to submit to the test. Hoban v. Rice, 25 Ohio St.2d 111, 267 N.E.2d 311, paragraph 3 of the syllabus (1971). Such refusal need not have been knowingly and intentionally made. Id. Whether or not a driver refused a test is a factual determination that is to be made by the trial court based upon all of the evidence before it. State v. Owen, 12th Dist. Warren No. CA97-12-229, 1998 WL 729204 (Oct. 19, 1998).
In State v. Brown, 12th Dist. Clermont No. CA2013-04-029, 2013-Ohio-4981, the 12th District Court of Appeals reversed an administrative license suspension based on refusal to submit to a urine test where the officer testified that the defendant agreed to take the urine test, attempted to provide a sample several times, and drank multiple glasses of water. Id. at ¶12.

The Fifth District held, however, that because Boyer only tried to provide a sample for five minutes, and did not ask to provide a sample again, it was not against the manifest weight of the evidence to hold that she had refused to provide a sample after first agreeing.

State v. Topolosky, 2015 Ohio 4963 (10th Dist).


December 1, 2015


Topolosky was convicted of a violation of an OVI based on the presence of at least 35 nanograms of marijuana metabolite per milliliter in the his urine. R.C. 4511.19(A)(1)(j)(viii)(II).  The 10th District first rejected Topolosky's claim that the trial court erred in allowing the lab technician to testify that she followed a written procedure manual as required by law, without admitting the manual itself.  The 10th District reasoned that the testimony alone was sufficient to prove substantial compliance with testing procedures.

Topolosky also argued that sodium chloride had been used in his sample and it was therefore invalid.  The Administrative Code previously required it, but was amended and is nowd silent regarding it.  The court rejected this argument, however, because Topolosky did not present any evidence that the use of sodium chloride would impact the test results. The court likewise rejected Topolosky's argument that the lab technician had failed to undergo required proficiency testing, finding instead that there was sufficient evidence for the trial court to find she had.  Finally, the Tenth District rejected Topolosky's constitutional challenges to the per se violation of operating a vehicle with marijuana it found that R.C. 4511.19(A)(1)(j)(viii)(II) is not void for vagueness and does not violate constitutional guarantees of equal protection and due process, we overrule Topolosky's fourth assignment of error.

State v. Locker, 2015 Ohio 4953 (5th Dist).


November 30, 2015

Locker appealed the trial court's denial of a motion to suppress.  He first argued that he did not commit a lane violation to justify the stop, "because his turn signal blinker was on when he made the right-hand turn onto Walnut and remained on when he moved from the right lane, over the dash line into the middle lane and then back into the right lane.  The court observed that 4511.33, states the following:

(A) Whenever any roadway has been divided into two or more clearly marked lanes for traffic * * *, the following rules apply: (1) A vehicle or trackless trolley shall be driven, as nearly as is practicable, entirely within a single lane or line of traffic and shall not be moved from such lane or line until the driver has first ascertained that such movement can be made with safety. * * *.

The Fifth District reasoned that Locker could not have "first ascertained that such movement [could] be made with safety," and therefore the trial court's decision was not against the manifest weight of the evidence.

With regard to whether there was reasonable suspicion sufficient to justify detaining Locker for field sobriety tests, the court distinguished Locker's case from its decision in State v. Keserich, 2014 Ohio 5120 (Ct. App. 2014).  In Keserich, the defendant was pulled over for a license plate, admitted to having two drinks, and observed having bloodshot eyes.  The court held there was not reasonable suspicion because no erratic driving was observed and the bloodshot eyes could be explained as a result of other people smoking in the vehicle.  For Locker, however, there were driving violations, his eyes were bloodshot and glassy,there was an odor of alcohol coming from the vehicle and after Locker was outside of the vehicle, Locker admitted to having just left a bar, and it was 11:35 p.m. on a Friday evening.  As a result, the Fifth District held that there was a reasonable basis for the officer to ask Locker to step out of the vehicle and complete the field sobriety testing.

State v. Tackett, 2015 Ohio 4923 (11th Dist).


November 30, 2015

Tackett was convicted of an OVI with a specification that he was convicted of five prior OVI offenses in the past 20 years.  He was unsuccessful with appeals and filed a motion for post-conviction relief, challenging the trial court's decision that it did not have jurisdiction to hear a motion to vacate during an appeal, as well as raising arguments with respect to the constitutionality of the specification statute.  The Eleventh District agreed with the trial court, that it did not have jurisdiction to hear Tackett's motion to vacate because Tackett had already appealed his sentence and the motion to vacate the OVI specification would not aid Tackett's other appeal. The Eleventh District rejected the constitutional argument on the basis of res judicata, which "bars a defendant from raising an issue in a post-conviction proceeding that he failed to raise on direct appeal."

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