DUI Appeals Reports 12/9/15

The 1st District overturns a high tier conviction OVI conviction because it had been improperly amended from a low tier charge, the 12th District confirms that OVI and aggravated vehicular homicide charges need not be merged, the 11th District holds that the repeat OVI offender specification does not violated the Constitution, and the 12th District holds that tampering with drugs is not a crime when it is done during an impaired driving/bar fight investigation.


State v. Rosemond, 2015 Ohio 4878 (1st Dist).


November 18, 2015

Rosemond was originally charged with a low tier OVI (R.C. 4511.19(A)(1)(b)), alleging that he drove with an alcohol content greater than .08 but less than .17.  The prosecution amended the charge to a high tier OVI (R.C. 4511.19(A)(1)(h)), alleging the he drove with an alcohol content of .17 or greater.  Rosemond appealed the amendment.

The 1st District reviewed that Crim.R. 7(D) allows a court to "amend the indictment, information, complaint, or bill of particulars, in respect to any defect, imperfection, or omission in form or substance, or of any variance with the evidence, provided no change is made in the name or identity of the crime charged." The Ohio Supreme Court has held that a court may not amend and indictment when the amendment changes the penalty or degree of the charged offense, because such a change alters the identity of the offense. State v. Davis, 121 Ohio St.3d 239, 2008-Ohio-4537, 903 N.E.2d 609, syllabus.

The 1st District observed that, although the low tier and high tier OVIs are both first degree misdemeanors, the low tier requires a minimum of 3 days in jail or 3 days of a drivers intervention program, while the high tier requires an additional 3 days of jail.  Because the amended charge had a higher penalty, the court concluded, “Therefore, the amendment changed the name and identity of the offense, and it was improper under Crim.R. 7(D).”


State v. Pickett, 2015 Ohio 4814 (12th Dist.).


November 23, 2015

After being found guilty of aggravated vehicular homicide and OVI, the trial court sentenced Pickett to an eight-year mandatory prison term for aggravated vehicular homicide and 180 days, 177 days of which were suspended, for OVI, to be served concurrently, for an aggregate prison term of eight years.

Picket appealed, arguing that aggravated vehicular homicide and OVI are allied offenses of similar import and should have merged for sentencing.

The 1st District pointed out that the Ohio Supreme Court in State v. Early had recently held that, “a trial court may impose cumulative sentences for both aggravated vehicular assault and OVI when the OVI is the predicate conduct for the aggravated vehicular assault.”  The 1st District, therefore, the trial court did not err in Picket’s case.


State v. Valentyn, 2015 Ohio 4834 (11th Dist).


November 23, 2015

Valentyn plead guilty to a felony OVI charge and no contest to a habitual offender specification under R.C. 2941.1413. Valentyn ultimately appealed the trial court's denial of a motion to dismiss the specification, claiming the it violated his Constitutional equal protection and due process protections.  He relied in part on State v. Klembus, 2014 Ohio 3227 (8th Dist), which held the the repeat OVI offender specification violates equal protection.  The Ohio Supreme Court's has allowed an appeal for Klembus.

The 11th District rejected the Klembus reasoning, and as a result Valentyn's appeal, choosing instead to adopt reasoning from the 12th District in State v. Hartsook, 2014 Ohio 4528 (12th Dist).  It quoted the 12th District as follows:

We disagree with [appellant's] contention that R.C. 2941.1413 denies equal protection of the law to repeat OVI offenders simply because the law leaves it to the prosecutor's discretion to insert—or not insert—the specification into the indictment. It is axiomatic that the decision about what charge to file or bring before the grand jury generally rests within the discretion of the prosecutor. * * * It will not be presumed that a prosecutor's discretion to prosecute has been invidious or in bad faith, and [appellant] has offered no argument that would call into question the rationale for the discretion that our legal system traditionally affords the prosecutor. * * * Moreover, [appellant] has failed to offer an argument that would suggest the cumulative punishment the legislature sought to impose under R.C. 4511.19 and R.C. 2941.1413 does not serve a legitimate government interest.

State v. Schuster, 2015 Ohio 4818 (12th Dist).


November 23, 2015

While responding to a call regarding a fight at a bar, an officer saw a car driving toward him with its trunk open.  The officer witnessed Schuster exit the driver's door and stand near the trunk.  After the officer saw signs that Schuster had been assaulted, detected an odor of alcohol, and observed that Schuster had difficulty maintaining his balance, he asked Schuster to complete roadside sobriety tests.  When Schuster refused, he was taken to the police station.  The owner had been in the back seat of the car.  While at the police station, Schuster was recorded asking a friend to remove items from the trunk of the car.  The owner subsequently returned to the car and discovered pills, marijuana, money, and rolling papers in the trunk.  He notified the police of this.

Schuster received a sentence of eight years for an OVI with repeat offender specification, two years for tampering with evidence, and one year for possession.

Schuster raised speedy trial arguments on appeal, which were rejected in part due to the signing of speedy trial waivers.  He also raised an argument that the repeat offender specification is unconstitutional, but the 12th District followed its reasoning discussed above upholding its constitutionality.

Schuster's challenges to his OVI convictions were denied; however, he was successful in appealing a conviction for tampering with evidence.  He had been charged with tampering with evidence due to allegations that he discarded drugs into the car's trunk during the traffic stop.

The 12th District reviewed the following standard for tampering with evidence:

[T]o establish a violation of the tampering statute, the state must show that the defendant, with knowledge of a proceeding or investigation that is in progress or likely to be instituted, altered, destroyed, concealed, or removed any "record, document, or thing" with the purpose to impair its value or availability as evidence in that proceeding or investigation.

 State v. Straley, 139 Ohio St.3d 339, 2014-Ohio-2139, ¶ 18.  Further, the evidence being tampered "with must relate to the proceeding or investigation that is occurring at the time the evidence was tampered with."

The 12th District concluded that, at the time the drugs were discarded, the police were focused on impaired driving and a bar fight that had occurred, but were not conducting nor likely to conduct an investigation into trafficking or possession of drugs.  Because the drugs did not relate to a proceeding or investigation that was occurring at the time they were tampered with, that tampering conviction was overturned.


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