The Sixth District holds that attacks to prior OVI convictions based on being uncounseled must be supported with some evidence, even if an affidavit, in the present case; and the Eleventh District holds that probable cause exists when a driver leaves the scene of an accident, gets his vehicle stuck in the mud, has beer cans in his truck, glassy, sleepy eyes, an odor of alcohol, seems confused, and refuses sobriety tests.
December 30, 2015
On February 11, 2015, Meyers was indicted by an Erie County Grand Jury for two fourth-degree felony OVI counts, alleging Meyers had been convicted of OVI five times within the past twenty years. On May 14, 2015, Meyers was indicted for two more felony OVI counts for an incident that occurred on April 4, 2015. Meyers filed a motion to dismiss, claiming a prior OVI conviction from 2001 was uncounseled and the waiver of counsel was "undocumented" and therefore could not be used to enhance his 2015 charges to felonies. The trial court granted the motions to dismiss and the state appealed.
The Sixth District reviewed that prior convictions can be attacked if they violated the right to counsel; however, the convictions will be presumed constitutional unless proved by a preponderance otherwise. The defendant must show that they had not been represented by counsel and had not validly waived the right to counsel and that the prior convictions had resulted in confinement. For serious offenses (i.e., felonies and misdemeanors with the potential of confinement for more than six months), the waiver must be in writing, in open court, and recorded. For petty offenses (i.e., other misdemeanors), the waiver must just be in open court and recorded. If the defendant makes a prima facie showing, the burden then shifts to the state to show that the right to counsel was properly waived and there was no constitutional infirmity.
The Sixth District rejected Meyers argument that his waiver in the 2001 case was deficient because he did not introduce any evidence to support this argument. The Sixth District explained:
Had appellee provided an affidavit to the trial court which stated his 2001 conviction was uncounseled because the form he reviewed did not contain sufficient or appropriate cautionary advice regarding waiving his right to counsel, this would have established a prima facie showing of constitutional infirmity. Without evidence in the record to the contrary, we presume the court in the 2001 conviction proceeded constitutionally in advising appellee of his right to counsel.
December 31, 2015
A report was made of a hit and skip and the vehicle involved was identified as a blue Ford Ranger. An officer found the vehicle stuck in the mud, with Hale the only occupant. Hale had glassy, sleepy eyes and an odor of alcohol, and seemed confused. The officer handcuffed him while he inspected the vehicle, though later claimed he did not have probable cause for arrest at this point. After observing empty beer cans in the bed of the truck, Hale was asked to perform sobriety tests. An HGN test was performed, though Hale refused any further tests.
The trial court granted a motion to suppress in part with respect to the sobriety tests because "the tests were not fully completed" and "the results cannot be considered in part." The motion was denied with respect to issues of reasonable suspicion to detain and probable cause to arrest.
The Eleventh District reasoned that, regardless of the officer's statement that he did not have probable cause to arrest before giving the sobriety tests, the court decides whether there was probable cause. Even though the HGN test was excluded, the officer's observations while administering the tests can support a probable cause determination. Here, the officer's observations of Hale's eyes bouncing was a factor that could be considered. Additionally, the 11th District held that, "refusal to submit to field sobriety tests is [a] factor that may be considered in determining the existence of probable cause in an arrest for driving under the influence of alcohol."
Hale argued that his confusion may have been a result of the accident rather than intoxication, that the odor of alcohol does not necessarily mean impairment, and the old beer cans in his truck did not indicate present intoxication. However, the court reasoned that, "the evidence of intoxication and totality of the circumstances outlined above provided more than enough to find probable cause justifying arrest."