2011 Annual Convention. Traffic Law Update

Transcription

1 2011 Annual Convention Traffic Law Update Traffic Law Committee 3.0 General CLE Hours May 4-6, 2011 Columbus

2 CONTRIBUTORS Shawn R. Dominy Attorney at Law Powell, Ohio Mr. Dominy earned his undergraduate degree from The Ohio State University and his J.D. from The Ohio State University Michael E. Moritz College of Law. His professional Memberships include the National College for DUI Defense and Columbus Bar Association (Co-Chair, Criminal Law Committee). Mr. Dominy is a criminal defense attorney and focuses his practice on representing clients charged with OVI/DUI. He is certified by NPAS in the Basic Science of Evidential Breath Alcohol Testing and the operation, diagnostic verification, and calibration of the BAC Datamaster breath testing instrument. Mr. Dominy has completed the National Highway Traffic Safety Administration course in Standardized Field Sobriety Testing and is a member of Criminal Defense Lawyer Associations at the national, state, and local levels. For additional information, please visit D. Timothy Huey Attorney at Law Columbus, Ohio Mr. Huey is a member of the Ohio State Bar Association, Ohio Association of Criminal Defense Lawyers (President-Elect; Life Member; DUI Co-Chair), and National College of DUI Defense (Ohio Delegate; Sustaining Member). He has been in private practice defending DUI clients since 1984 and limits his practice almost exclusively to the defending citizens against DUI and vehicular homicide allegations. Mr. Huey was the first Ohio lawyer to obtain both the DataMaster and Intoxilyzer breath testing devices, and one of the first Ohio lawyers to receive training in the NHTSA Standardized Field Sobriety Test protocol. He is a frequent presenter on topics related to his areas of practice in Ohio and other states. For additional information, please visit Cleve M. Johnson Attorney at Law Columbus, Ohio Mr. Johnson received his B.A. from The Ohio State University and his J.D. from Capital University Law School. His professional memberships include the Ohio State Bar Association (Chair, Traffic Law Committee), National College for DUI Defense, Ohio Association of Criminal Defense Lawyers, Central Ohio Association of Criminal Defense Lawyers, Columbus Bar Association, and Ohio Trial Lawyers Association. Mr. Johnson is a criminal defense attorney and practices in the areas of traffic, criminal, and driver s license cases. He is the author of several Ohio newspaper articles on the topic of drunken driving based on the Ohio State Bar Association s Law You Can Use series. Mr. Johnson is a frequent contributor to legal education seminars on topics relating to OVI and traffic law. He also has testified before committees of the Ohio Legislature regarding traffic legislation. For additional information, please visit Terrence R. Rudes Attorney at Law Port Clinton, Ohio Mr. Rudes received his B.A. from The University of Toledo and his J.D. from The University of Toledo College of Law. His professional memberships include the Ottawa County Bar Association, Ohio State Bar Association, Ohio Association of Criminal Defense Lawyers, National College for DUI Defense, and National Association of Criminal Defense Lawyers. Mr. Rudes is a solo practitioner whose primary area of practice is OVI/DUI trials and appeals. He is certified in Standardized Field Sobriety Testing. Mr. Rudes is a frequent presenter to various professional organizations on topics related to his areas of practice. For additional information, please visit

3 Jon J. Saia Saia & Piatt PLL Columbus, Ohio Mr. Saia is a member of the Ohio Association of Criminal Defense Lawyers, National College for DUI Defense Lawyers, National Association of Criminal Defense Lawyers, Ohio State Bar Association, and Central Ohio Association of Criminal Defense Lawyers. He focuses his practice in OVI defense and has over 22 years of experience in that field. Beyond representing individuals charged with OVI, Mr. Saia also provides consultation and expert testimony on the issue of field sobriety testing and is often consulted by colleagues with regard to breath testing issues. The National Highway Traffic Safety Administration (NHTSA) and the International Association of Chiefs of Police (IACP) have certified him as an Instructor in DUI Detection and Standardized Field Sobriety Testing. In addition, National Patent Analytical Systems, Inc. has certified Mr. Saia in the operation, diagnostic verification, and calibration of the BAC DataMaster Breath Alcohol Testing Instrument, the most commonly used breath testing instrument in Ohio. In anticipation of the State of Ohio passing a Driving Under the Influence of Drugs Law (DUID), he completed the NHTSA and IACP Drug Evaluation and Classification Program. In addition to speaking at seminars, Mr. Saia participates in approximately 40 hours per year of continuing legal education, both locally and nationally, regarding DUI defense. For additional information, please visit Honorable Kenneth R. Spanagel Parma Municipal Court Cleveland, Ohio Judge Spanagel received his B.S. from Northwestern University and his J.D. from Case Western Reserve University School of Law. His professional memberships include the Ohio State Bar Association (Judicial Administration and Legal Reform Committee; Council of Delegates; Traffic Law Committee), Parma Bar Association (Trustee; Co-Chair, CLE Committee), Cleveland Metropolitan Bar Association (Chair), Ohio State Bar Foundation (Life Fellow), President, Association of Municipal/County Court Judges of Ohio (Editorial Board, THE CHRONICLE), Ohio Traffic Rules Review Commission (Multicount Uniform Traffic Ticket Subcommittee), and Government Assistance Program (Trained Mediator). Judge Spanagel serves as Presiding and Administrative Judge of the Parma Municipal Court. He received the Ohio State Bar Association s Award of Merit for Parma Bar Association activities and the President s Award from the Association of Municipal/County Court Judges of Ohio. Judge Spanagel is a frequent contributor to CLE programs for numerous organizations, including the Cleveland Metropolitan Bar Association, Parma Bar Association, OSBA CLE, and the Academy of Continuing Legal Education, as well as school programs and the Cleveland Metropolitan Bar Association s People s Law School. For additional information, please visit

4 Traffic Law Update Session # 606 Chapter 1 Rule 16: How the New Discovery Rule Affects OVI Cases Shawn R. Dominy What s New with Rule 16? New Requirements for Prosecutors (B) New Requirements for Defense Counsel (H) Expert Witnesses and Reports (K) Sample Discovery Demand Interesting Observations About Application of New Rule Attachments Ohio Rules of Criminal Procedure Rule 16. Discovery and Inspection Old Rule 16. Discovery and Inspection Demand for Discovery Chapter 2 Vega and the Intoxilyzer 8000 D. Timothy Huey State v. Sellards (1985), Ohio St. 3d Ohio Rev. Code (D)(1)(B) Provides Only That Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993), Discussing What Happens at Trial After Evidence Is Found Admissible Under Daubert Analysis U.S. Constitution, Sixth Amendment Ohio Constitution, Article 1, Ohio Constitution, Article 1, Blakely v. Washington, 542 U.S. 296 (2004) Crane v. Kentucky, 476 U.S. 683, 690, 106 S. Ct (1986) Greene v. Lambert, 288 F. 3d 1081 (2001) Crane v. Kentucky, 476 U.S. 683, 690, 106 S. Ct (1986) Columbus v. Forest, 36 Ohio App. 3d 169, 522 N.E.2d. 52 (1987) Attachment Do OVI Cases Betray a Hidden Agenda Behind Daubert? Chapter 3 The Intoxilyzer 8000 Regulations Cleve M. Johnson Differences Between Datamaster/Intox 5000 and Intoxilyzer 8000 Regulations No Log Books No Local Calibration Officer No More Senior Operators No More RFI Checks Manual Incorporated into Regulations Odd Effect of 8000 Rules on Datamaster/Intox 5000 Cases Biased Defense Attorney Question Attachment Ohio Admin. Code Chapter Alcohol Testing PowerPoint Presentation

5 Chapter 4 Case Law Update: A Collection of Recent Cases of General Interest Honorable Kenneth R. Spanagel Charging the Offense Speeding Notice of License Suspension The Administrative License Suspension Appeal Administrative License Suspension and Requirement of an Arrest Administrative License Suspension Termination Operation Motions to Suppress Timeliness Motions to Suppress State Appeal The Stop Extraterritorial Stop Ordering Motorists Out of Vehicle Search Incident to Stop/Arrest Field Sobriety Tests Chemical Tests Twenty-Minute Waiting Period Blood Draw Based on Affidavit Evidentiary Issues Request for Appointment of Expert Plea Sentencing Speedy Trial Postconviction Relief Miscellaneous Other Cases Chapter 5 Intoxilyzer 8000 Issues in Other States Jon J. Saia Tennessee Arizona Florida Minnesota Attachments Evaluation of the Intoximeter EC/IR II, CMI Intoxilyzer 8000, and Drager Alcotest 7110 Breath Alcohol Instrument Tennessee Bureau of Investigation Forensic Services Division Minimum Standards and Specifications for the Scientific Appraisal of Breath Alcohol Instruments CMI 8000 Wet-Bath Standards Evaluation of the Intoximeter EC/IR II, CMI Intoxilyzer 8000, and the Drager Alcotest 7110 Breath Alcohol Instruments CMI 8000 Interferants Detected Evaluation of the Intoximeter EC/IR II, CMI Intoxilyzer 8000, and the Drager Alcotest 7110 Breath Alcohol Instruments CMI 8000 Breath Tube CMI 8000 Gas-Cal Port Judge Rescinds Order for DUI Breath-Test Device Code State of Florida v. Yount State Picks New DWI Breath-Testing Vendor The Inconvenient Truth About the Intoxilyzer 8000 Breath Alcohol Testing Instrument

6 Rule 16: How the New Discovery Rule Affects OVI Cases 1 Shawn R. Dominy Attorney at Law Powell, Ohio

7 Rule 16: How the New Discovery Rule Affects OVI Cases 1 Shawn R. Dominy Attorney at Law Powell, Ohio WHAT S NEW WITH RULE 16? A. Rule became effective July 1, 2010 (old Rule was adopted in 1974). B. The Rule contains a purpose and scope. Old Rule did not have a purpose and scope clause. C. The Rule also contains notes a resolution from the General Assembly. NEW REQUIREMENTS FOR PROSECUTORS (B) A. All laboratory or hospital reports (B)(3). May have been covered under old Rule in (c) and (d). B. All reports from peace officers, OSP, and federal agents (B)(6). Big change, probably considered a victory for the defense. C. Any written or recorded witness statements (B)(7). Old Rule required in camera inspection for discrepancies. D. Prosecutor s designation of counsel-only materials (C). 1. May only be shown to defense counsel and counsel s agents. 2. May be communicated orally to the defendant. E. Prosecutor s certification of nondisclosure (D). 1. Five reasons for not disclosing materials. 2. Certification shall identify the nondisclosed material. Rule

8 F. Review of certification of nondisclosure and counsel only (F). 1. On motion by defendant, in camera review seven days before trial. 2. Test is abuse of discretion. 3. If trial court orders disclosure, material is counsel only, and prosecutor can file interlocutory appeal. G. Perpetuation of testimony (G). Used if certificate of nondisclosure is filed and court orders disclosure of the material. H. Sexual assault cases (E). Probably not an issue in OVI cases! NEW REQUIREMENTS FOR DEFENSE COUNSEL (H) A. Requirement of reciprocal discovery is automatic if defense counsel files a written demand for discovery (H). Old Rule required prosecutor to make demand first (C)(1)(b). B. Duty to disclose arises if item is related to case and: (1) material to innocence or alibi of defendant; (2) intended for use at trial; or (3) obtained from or belong to the victim. C. All laboratory reports or hospital reports (H)(1). D. Results of physical or mental examinations, experiments, or scientific tests (H)(2). E. Any evidence that tends to negate the guilt of the defendant, is material to punishment, or tends to support an alibi (H)(3). 1. The defendant has poor coordination? 2. The officer administered the tests incorrectly? 3. The defendant is now in alcohol counseling? F. All investigative reports (H)(4). 1. Private investigator. 2. Attorney investigation? a. Paragraph (J) excludes work product of attorney or agents. b. Paragraph (J) applies to prosecutors also. 1.2 Traffic Law Update

9 G. Any written or recorded statement by a defense witness (H)(5). 1. Paragraph (J) excludes work product of attorney or agents. 2. Paragraph (J) applies to prosecutors also. 3. What if conversation with witness is not recorded, and witness does not make a written statement? H. Expert reports: 21 days prior to trial. What if you don t intend to use expert at trial? Result of not disclosing is inability to use at trial. EXPERT WITNESSES AND REPORTS (K) A. Expert shall prepare written report. B. Report shall be disclosed 21 days prior to trial. C. Failure to disclose report shall preclude expert s testimony at trial. D. If prosecutor has expert, shall prepare written report. Shall be disclosed if using at trial, and shall be disclosed if favorable to the defendant (B)(7). E. If defense has expert, shall prepare written report. Shall be disclosed if using at trial, but need not be disclosed if it doesn t negate guilt (H)(3). SAMPLE DISCOVERY DEMAND Attached. INTERESTING OBSERVATIONS ABOUT APPLICATION OF NEW RULE A. Witness statements: only if written or recorded. B. Does it really help the defense? C. What questions remain? Rule

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11 Attachments Rule

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13 Ohio Rules OHIO RULES OF CRIMINAL PROCEDURE As amended through July 1, 2010 Rule 16. Discovery and Inspection (A) Purpose, Scope and Reciprocity. This rule is to provide all parties in a criminal case with the information necessary for a full and fair adjudication of the facts, to protect the integrity of the justice system and the rights of defendants, and to protect the well-being of witnesses, victims, and society at large. All duties and remedies are subject to a standard of due diligence, apply to the defense and the prosecution equally, and are intended to be reciprocal. Once discovery is initiated by demand of the defendant, all parties have a continuing duty to supplement their disclosures. (B) Discovery: Right to Copy or Photograph. Upon receipt of a written demand for discovery by the defendant, and except as provided in division (C), (D), (E), (F), or (J) of this rule, the prosecuting attorney shall provide copies or photographs, or permit counsel for the defendant to copy or photograph, the following items related to the particular case indictment, information, or complaint, and which are material to the preparation of a defense, or are intended for use by the prosecuting attorney as evidence at the trial, or were obtained from or belong to the defendant, within the possession of, or reasonably available to the state, subject to the provisions of this rule: (1) Any written or recorded statement by the defendant or a co-defendant, including police summaries of such statements, and including grand jury testimony by either the defendant or co-defendant; (2) Criminal records of the defendant, a co-defendant, and the record of prior convictions that could be admissible under Rule 609 of the Ohio Rules of Evidence of a witness in the state s case-in-chief, or that it reasonably anticipates calling as a witness in rebuttal; (3) Subject to divisions (D)(4) and (E) of this rule, all laboratory or hospital reports, books, papers, documents, photographs, tangible objects, buildings, or places; (4) Subject to division (D)(4) and (E) of this rule, results of physical or mental examinations, experiments or scientific tests; (5) Any evidence favorable to the defendant and material to guilt or punishment; (6) All reports from peace officers, the Ohio State Highway Patrol, and federal law enforcement agents, provided however, that a document prepared by a person other than the witness testifying will not be considered to be the witness s prior statement for purposes of the cross examination of that particular witness under the Rules of Evidence unless explicitly adopted by the witness; Rule

14 (7) Any written or recorded statement by a witness in the state s case-in-chief, or that it reasonably anticipates calling as a witness in rebuttal. (C) Prosecuting Attorney s Designation of Counsel Only Materials. The prosecuting attorney may designate any material subject to disclosure under this rule as counsel only by stamping a prominent notice on each page or thing so designated. Counsel only material also includes materials ordered disclosed under division (F) of this rule. Except as otherwise provided, counsel only material may not be shown to the defendant or any other person, but may be disclosed only to defense counsel, or the agents or employees of defense counsel, and may not otherwise be reproduced, copied or disseminated in any way. Defense counsel may orally communicate the content of the counsel only material to the defendant. (D) Prosecuting Attorney s Certification of Nondisclosure. If the prosecuting attorney does not disclose materials or portions of materials under this rule, the prosecuting attorney shall certify to the court that the prosecuting attorney is not disclosing material or portions of material otherwise subject to disclosure under this rule for one or more of the following reasons: (1) The prosecuting attorney has reasonable, articulable grounds to believe that disclosure will compromise the safety of a witness, victim, or third party, or subject them to intimidation or coercion; (2) The prosecuting attorney has reasonable, articulable grounds to believe that disclosure will subject a witness, victim, or third party to a substantial risk of serious economic harm; (3) Disclosure will compromise an ongoing criminal investigation or a confidential law enforcement technique or investigation regardless of whether that investigation involves the pending case or the defendant; (4) The statement is of a child victim of sexually oriented offense under the age of thirteen; (5) The interests of justice require non-disclosure. Reasonable, articulable grounds may include, but are not limited to, the nature of the case, the specific course of conduct of one or more parties, threats or prior instances of witness tampering or intimidation, whether or not those instances resulted in criminal charges, whether the defendant is pro se, and any other relevant information. The prosecuting attorney s certification shall identify the nondisclosed material. (E) Right of Inspection in Cases of Sexual Assault. (1) In cases of sexual assault, defense counsel, or the agents or employees of defense counsel, shall have the right to inspect photographs, results of physical or mental examinations, or hospital reports, related to the indictment, information, or 1.8 Traffic Law Update

15 complaint as described in section (B)(3) or (B)(4) of this rule. Hospital records not related to the information, indictment, or complaint are not subject to inspection or disclosure. Upon motion by defendant, copies of the photographs, results of physical or mental examinations, or hospital reports, shall be provided to defendant s expert under seal and under protection from unauthorized dissemination pursuant to protective order. (2) In cases involving a victim of a sexually oriented offense less than thirteen years of age, the court, for good cause shown, may order the child s statement be provided, under seal and pursuant to protective order from unauthorized dissemination, to defense counsel and the defendant s expert. Notwithstanding any provision to the contrary, counsel for the defendant shall be permitted to discuss the content of the statement with the expert. (F) Review of Prosecuting Attorney s Certification of Non-Disclosure. Upon motion of the defendant, the trial court shall review the prosecuting attorney s decision of nondisclosure or designation of counsel only material for abuse of discretion during an in camera hearing conducted seven days prior to trial, with counsel participating. (1) Upon a finding of an abuse of discretion by the prosecuting attorney, the trial court may order disclosure, grant a continuance, or other appropriate relief. (2) Upon a finding by the trial court of an abuse of discretion by the prosecuting attorney, the prosecuting attorney may file an interlocutory appeal pursuant to division (K) of Rule 12 of the Rules of Criminal Procedure. (3) Unless, for good cause shown, the court orders otherwise, any material disclosed by court order under this section shall be deemed to be counsel only material, whether or not it is marked as such. (4) Notwithstanding the provisions of (E)(2), in the case of a statement by a victim of a sexually oriented offense less than thirteen years of age, where the trial court finds no abuse of discretion, and the prosecuting attorney has not certified for nondisclosure under (D)(1) or (D)(2) of this rule, or has filed for nondisclosure under (D)(1) or (D)(2) of this rule and the court has found an abuse of discretion in doing so, the prosecuting attorney shall permit defense counsel, or the agents or employees of defense counsel to inspect the statement at that time. (5) If the court finds no abuse of discretion by the prosecuting attorney, a copy of any discoverable material that was not disclosed before trial shall be provided to the defendant no later than commencement of trial. If the court continues the trial after the disclosure, the testimony of any witness shall be perpetuated on motion of the state subject to further cross-examination for good cause shown. (G) Perpetuation of Testimony. Where a court has ordered disclosure of material certified by the prosecuting attorney under division (F) of this rule, the prosecuting attorney may move the court to perpetuate the testimony of relevant witnesses in a hearing before the court, in which hearing the defendant shall have the right of Rule

16 cross-examination. A record of the witness s testimony shall be made and shall be admissible at trial as part of the state s case in chief, in the event the witness has become unavailable through no fault of the state. (H) Discovery: Right to Copy or Photograph. If the defendant serves a written demand for discovery or any other pleading seeking disclosure of evidence on the prosecuting attorney, a reciprocal duty of disclosure by the defendant arises without further demand by the state. The defendant shall provide copies or photographs, or permit the prosecuting attorney to copy or photograph, the following items related to the particular case indictment, information or complaint, and which are material to the innocence or alibi of the defendant, or are intended for use by the defense as evidence at the trial, or were obtained from or belong to the victim, within the possession of, or reasonably available to the defendant, except as provided in division (J) of this rule: (1) All laboratory or hospital reports, books, papers, documents, photographs, tangible objects, buildings or places; (2) Results of physical or mental examinations, experiments or scientific tests; (3) Any evidence that tends to negate the guilt of the defendant, or is material to punishment, or tends to support an alibi. However, nothing in this rule shall be construed to require the defendant to disclose information that would tend to incriminate that defendant; (4) All investigative reports, except as provided in division (J) of this rule; (5) Any written or recorded statement by a witness in the defendant s case-in- chief, or any witness that it reasonably anticipates calling as a witness in surrebuttal. (I) Witness List. Each party shall provide to opposing counsel a written witness list, including names and addresses of any witness it intends to call in its case-inchief, or reasonably anticipates calling in rebuttal or surrebuttal. The content of the witness list may not be commented upon or disclosed to the jury by opposing counsel, but during argument, the presence or absence of the witness may be commented upon. (J) Information Not Subject to Disclosure. The following items are not subject to disclosure under this rule: (1) Materials subject to the work product protection. Work product includes, but is not limited to, reports, memoranda, or other internal documents made by the prosecuting attorney or defense counsel, or their agents in connection with the investigation or prosecution or defense of the case; (2) Transcripts of grand jury testimony, other than transcripts of the testimony of a defendant or co-defendant. Such transcripts are governed by Crim. R. 6; (3) Materials that by law are subject to privilege, or confidentiality, or are otherwise prohibited from disclosure Traffic Law Update

17 (K) Expert Witnesses; Reports. An expert witness for either side shall prepare a written report summarizing the expert witness s testimony, findings, analysis, conclusions, or opinion, and shall include a summary of the expert s qualifications. The written report and summary of qualifications shall be subject to disclosure under this rule no later than twenty-one days prior to trial, which period may be modified by the court for good cause shown, which does not prejudice any other party. Failure to disclose the written report to opposing counsel shall preclude the expert s testimony at trial. (L) Regulation of discovery. (1) The trial court may make orders regulating discovery not inconsistent with this rule. If at any time during the course of the proceedings it is brought to the attention of the court that a party has failed to comply with this rule or with an order issued pursuant to this rule, the court may order such party to permit the discovery or inspection, grant a continuance, or prohibit the party from introducing in evidence the material not disclosed, or it may make such other order as it deems just under the circumstances. (2) The trial court specifically may regulate the time, place, and manner of a pro se defendant s access to any discoverable material not to exceed the scope of this rule. (3) In cases in which the attorney-client relationship is terminated prior to trial for any reason, any material that is designated counsel only, or limited in dissemination by protective order, must be returned to the state. Any work product derived from said material shall not be provided to the defendant. (M) Time of motions. A defendant shall make his demand for discovery within twenty-one days after arraignment or seven days before the date of trial, whichever is earlier, or at such reasonable time later as the court may permit. A party s motion to compel compliance with this rule shall be made no later than seven days prior to trial, or three days after the opposing party provides discovery, whichever is later. The motion shall include all relief sought under this rule. A subsequent motion may be made only upon showing of cause why such motion would be in the interest of justice. History. Effective: July 1, 1973; amended effective July 1, Note: Staff Note (July 1, 2010 Amendments) Division (A): Purpose, Scope and Reciprocity The purpose of the revisions to Criminal Rule 16 is to provide for a just determination of criminal proceedings and to secure the fair, impartial, and speedy administration of justice through the expanded scope of materials to be exchanged between the parties. Nothing in this rule shall inhibit the parties from exchanging greater discovery beyond the scope of this rule. The rule accelerates the timing of the exchange of materials, and expands the reciprocal duties in the exchange of materials. The limitations on disclosure permitted under this rule are believed to apply to the minority of criminal cases. Rule

18 The new rule balances a defendant s constitutional rights with the community s compelling interest in a thorough, effective, and just prosecution of criminal acts. The Ohio criminal defense bar, by and through the Ohio Association of Criminal Defense Lawyers and prosecutors, by and through the Ohio Prosecuting Attorneys Association, jointly drafted the rule and submitted committee notes to the Commission on the Rules of Practice and Procedure. The Commission on the Rules of Practice and Procedure discussed, modified, and adopted the notes submitted in developing these staff notes. Division (B): Discovery: Right To Copy or Photograph This division expands the State s duty to disclose materials and information beyond what was required under the prior rule. All disclosures must be made prior to trial. This division also requires the materials to be copied or photographed as opposed to inspection as permitted under the prior rule. Subject to several exceptions, the State must provide pretrial disclosure of all materials as listed in the enumerated divisions. Division (C): Prosecuting Attorney s Designation of Counsel Only Materials The State is empowered to limit dissemination of sensitive materials to defense counsel and agents thereof in certain instances. Documents marked as Counsel Only may be orally interpreted to the Defendant, or to counsel s agents and employees, but not shown or disseminated to other persons. The rule recognizes that defense counsel bears a duty as an officer of the court to physically retain Counsel Only material, and to limit its dissemination. Counsel s duty to the client is not implicated, since the rule expressly allows oral communication of the nature of the Counsel Only material. Division (D): Prosecuting Attorney s Certification of Nondisclosure This division provides a means to prevent disclosure of items or materials for limited reasons. The prosecution must be able to place reasonable limits on dissemination to preserve testimony and evidence from tampering or intimidation, and certain other enumerated purposes. The new rule explicitly recognizes that it is the prosecution s duty to assess the danger to witnesses and victims, and the need to protect those witnesses and victims by controlling the early disclosure of certain material, subject to judicial review. A nondisclosure must be for one of the reasons enumerated in the rule, and must be certified in writing to the court. The certification need not disclose the contents or meaning of the nondisclosed material, but must describe it with sufficient particularity to identify it during judicial review as described in division (F). The certification process recognizes the unique nature of sex crimes against children. In the event of a certification of nondisclosure, defense counsel will have the right to inspect the statement no later than the seven-day review hearing provided in subsection (F), which is an improvement from the prior Criminal Rule 16(B)(1)(g) Traffic Law Update

19 Finally, the rule recognizes that not every eventuality can be anticipated in the text of a rule, and allows nondisclosure in the interest of justice. Division (E): Right of Inspection in Cases of Sexual Assault This division recognizes the intensely personal nature of a sexual assault, and provides a special mechanism for discovery in such cases. It represents an exception to division (B). The compromise between the interests in the privacy and dignity of the victim are balanced against the right of the defendant to a thorough review of the State s evidence by permitting inspection, but not copying, of certain materials. Upon motion of the defendant, the court may, in its discretion, permit these materials to be provided under seal to defense counsel and the defendant s expert. In cases involving the sexual abuse of a child under the age of 13, upon motion and for good cause shown, the trial court may order dissemination of the child s statement under seal and pursuant to protective order to defense counsel and the defendant s expert. This provision facilitates meaningful communication between defense counsel and the defense expert, and to permit timely compliance with division (K) of the rule. Division (E)(2) is intended to give sufficient time for an expert to evaluate the statement, and also to permit defense counsel to consult with the expert on the content of the statement and issues related to it. This division is designed to provide an exception to the nondisclosure procedure sufficient to permit the expert and defense counsel to effectively evaluate the statement. The protective order shall apply to defense counsel and defendant s experts and agents. Division (F): Review of Prosecuting Attorney s Certification of Non-Disclosure This division provides for judicial review at the trial court level of a prosecutor s certification of nondisclosure. As in many other executive branch decisions the standard for review, subject to constitutional protections, is an abuse of discretion that is, was the prosecutor s decision unreasonable, arbitrary or capricious? The prosecution of a case is an executive function. The rule s nondisclosure provision is a tool to ensure the prosecutor is able to fulfill that executive function. The prosecutor should possess extensive knowledge about a case, including matters not properly admissible in evidence but highly relevant to the safety of the victim, witnesses, or community. Accordingly, the rule vests in the prosecutor the authority for seeking protection by the nondisclosure, and deference when making a good faith decision about unpredictable prospective human behavior. The review is conducted in camera on the objective criteria set out in division (D), seven days prior to trial, with defense counsel participating. If the Court finds an abuse of discretion, the material must be immediately disclosed to defense counsel. If the Court does not find an abuse of discretion, the material must nonetheless be disclosed no later than the commencement of trial. Further judicial review is provided by giving the prosecutor a right to an interlocutory appeal of an order of disclosure as provided for in Criminal Rule 12(K), which is amended to accommodate that process. Rule

20 Upon motion of the State, the certification of nondisclosure or Counsel Only designation is reviewable by the trial judge in the in camera proceeding. The preferred practice is to record or transcribe the in camera review to preserve any issues for appeal and sealed to preserve the confidential nature of the information. The in camera review is set seven days prior to trial so that it is, in essence, the end of the trial preparation stage. There was substantial debate regarding the time for this review. Seven days provides adequate opportunity for the defense to prepare for trial and respond to the content of any nondisclosed material. The protective purpose of this process would be destroyed if courts routinely granted continuances of a trial date after conducting the seven-day nondisclosure review. The Commission anticipated that continuances of trial dates would occur only in limited circumstances. Division (F)(4) seeks to protect victims of sexual assault who are still in their tender years. Division (G): Perpetuation of Testimony This division provides that if after judicial review the Court orders disclosure of evidence, the prosecutor upon motion to the Court is given a right to perpetuate testimony in a pretrial hearing as set forth in the subsection. Division (H): Discovery: Right to Copy or Photograph The previous rule allowed for disclosure of specified relevant evidence in the possession of defense counsel to the State upon the State s motion. This division expands defense counsel s duty to disclose materials and information beyond what was required under the prior rule. In this division a reciprocal duty of disclosure now arises upon defense counsel s motion for discovery without further demand from the State. This division requires the materials to be copied or photographed, as opposed to the prior rule that only allowed for inspection by the State. Subject to several exceptions covered in division (J), defense counsel must provide pretrial disclosure of materials as listed in the enumerated subsections. This division seeks to define the defense counsel s reciprocal duty of disclosure while respecting the constitutional and ethical obligations required in representing a client. For the first time, defense counsel has a duty to provide the State with evidence that tends to support innocence or alibi. This allows the State to properly assess its case, and re-evaluate the prosecution. The Commission believes this provision will facilitate meaningful plea negotiation and just resolution. Division (I): Witness List This division imposes an equal duty on each party to disclose the list of witnesses that will be called at trial. It prohibits counsel from commenting on the witness lists but does not prohibit the commenting upon the absence or presence of a witness relevant to the proceeding. See, State v. Hannah, 54 Ohio St.2d 84, 374 N.E.2d 1359 (1978) Traffic Law Update

21 Division (J): Information Not Subject to Disclosure This division clarifies what information is not subject to disclosure by either party for reasons of confidentiality, privilege, or due to their classification as documents determined to be work product. This division also references that the disclosure or nondisclosure of grand jury testimony is governed by Rule 6 of the Rules of Criminal Procedure. Division (K): Expert Witnesses; Reports The division requires disclosure of the expert witness s written report as detailed in the division no later than twenty-one days prior to trial. Failure to comply with the rule precludes the expert witness from testifying during trial. This prevents either party from avoiding pretrial disclosure of the substance of expert witness s testimony by not requesting a written report from the expert, or not seeking introduction of a report. This division does not require written reports of consulting experts who are not being called as witnesses. Division (L): Regulation of Discovery The trial court continues to retain discretion to ensure that the provisions of the rule are followed. This discretion protects the integrity of the criminal justice process while protecting the rights of the defendants, witnesses, victims, and society at large. In cases in which a defendant initially proceeds pro se, the trial court may regulate the exchange of discoverable material to accommodate the absence of defense counsel. Said exchange must be consistent with and is not to exceed the scope of the rule. In cases in which the attorney-client relationship is terminated prior to trial for any purpose, any material designated Counsel Only or limited in dissemination by protective order must be returned to the State. Any work product derived from such material shall not be provided to the defendant. The provisions of (L)(2) and (L)(3) are designed to give the court greater authority to regulate discovery in cases of a pro se defendant and addresses the problems that could arise if a defendant terminates the employment of his attorney and then demands everything in the attorney s file. This could frustrate the protections built into the rule to avoid release of material directly to the defendant in some cases. Section (M): Time of Motions This division requires timely compliance with all provisions of this rule subject to judicial review. Adherence to the requirements of this division will help to ensure the fair administration of justice. Rule

22 1.16 Traffic Law Update

23 Old Rule 16. Discovery and Inspection (A) Demand for discovery. Upon written request each party shall forthwith provide the discovery herein allowed. Motions for discovery shall certify that demand for discovery has been made and the discovery has not been provided. (B) Disclosure of evidence by the prosecuting attorney. (1) Information subject to disclosure. (a) Statement of defendant or co-defendant. Upon motion of the defendant, the court shall order the prosecuting attorney to permit the defendant to inspect and copy or photograph any of the following which are available to, or within the possession, custody, or control of the state, the existence of which is known or by the exercise of due diligence may become known to the prosecuting attorney: (i) Relevant written or recorded statements made by the defendant or co-defendant, or copies thereof; (ii) Written summaries of any oral statement, or copies thereof, made by the defendant or co-defendant to a prosecuting attorney or any law enforcement officer; jury. (iii) Recorded testimony of the defendant or co-defendant before a grand (b) Defendant s prior record. Upon motion of the defendant the court shall order the prosecuting attorney to furnish defendant a copy of defendant s prior criminal record, which is available to or within the possession, custody or control of the state. (c) Documents and tangible objects. Upon motion of the defendant the court shall order the prosecuting attorney to permit the defendant to inspect and copy or photograph books, papers, documents, photographs, tangible objects, buildings or places, or copies or portions thereof, available to or within the possession, custody or control of the state, and which are material to the preparation of his defense, or are intended for use by the prosecuting attorney as evidence at the trial, or were obtained from or belong to the defendant. (d) Reports of examination and tests. Upon motion of the defendant the court shall order the prosecuting attorney to permit the defendant to inspect and copy or photograph any results or reports of physical or mental examinations, and of scientific tests or experiments, made in connection with the particular case, or copies thereof, available to or within the possession, custody or control of the state, the existence of which is known or by the exercise of due diligence may become known to the prosecuting attorney. (e) Witness names and addresses; record. Upon motion of the defendant, the court shall order the prosecuting attorney to furnish to the defendant a written list of the names and addresses of all witnesses whom the prosecuting attorney intends to call at trial, together with any record of prior felony convictions Rule

24 of any such witness, which record is within the knowledge of the prosecuting attorney. Names and addresses of witnesses shall not be subject to disclosure if the prosecuting attorney certifies to the court that to do so may subject the witness or others to physical or substantial economic harm or coercion. Where a motion for discovery of the names and addresses of witnesses has been made by a defendant, the prosecuting attorney may move the court to perpetuate the testimony of such witnesses in a hearing before the court, in which hearing the defendant shall have the right of cross-examination. A record of the witness testimony shall be made and shall be admissible at trial as part of the state s case in chief, in the event the witness has become unavailable through no fault of the state. (f) Disclosure of evidence favorable to defendant. Upon motion of the defendant before trial the court shall order the prosecuting attorney to disclose to counsel for the defendant all evidence, known or which may become known to the prosecuting attorney, favorable to the defendant and material either to guilt or punishment. The certification and the perpetuation provisions of subsection (B)(1)(e) apply to this subsection. (g) In camera inspection of witness statement. Upon completion of a witness direct examination at trial, the court on motion of the defendant shall conduct an in camera inspection of the witness written or recorded statement with the defense attorney and prosecuting attorney present and participating, to determine the existence of inconsistencies, if any, between the testimony of such witness and the prior statement. If the court determines that inconsistencies exist, the statement shall be given to the defense attorney for use in cross-examination of the witness as to the inconsistencies. If the court determines that inconsistencies do not exist the statement shall not be given to the defense attorney and he shall not be permitted to cross-examine or comment thereon. Whenever the defense attorney is not given the entire statement, it shall be preserved in the records of the court to be made available to the appellate court in the event of an appeal. (2) Information not subject to disclosure. Except as provided in subsections (B)(1)(a), (b), (d), (f), and (g), this rule does not authorize the discovery or inspection of reports, memoranda, or other internal documents made by the prosecuting attorney or his agents in connection with the investigation or prosecution of the case, or of statements made by witnesses or prospective witnesses to state agents. (3) Grand jury transcripts. The discovery or inspection of recorded proceedings of a grand jury shall be governed by Rule 6(E) and subsection (B)(1)(a) of this rule. (4) Witness list; no comment. The fact that a witness name is on a list furnished under subsections (B)(1)(b) and (f), and that such witness is not called shall not be commented upon at the trial Traffic Law Update

25 (C) Disclosure of evidence by the defendant. (1) Information subject to disclosure. (a) Documents and tangible objects. If on request or motion the defendant obtains discovery under subsection (B)(1)(c), the court shall, upon motion of the prosecuting attorney order the defendant to permit the prosecuting attorney to inspect and copy or photograph books, papers, documents, photographs, tangible objects, or copies or portions thereof, available to or within the possession, custody or control of the defendant and which the defendant intends to introduce in evidence at the trial. (b) Reports of examinations and tests. If on request or motion the defendant obtains discovery under subsection (B)(1)(d), the court shall, upon motion of the prosecuting attorney, order the defendant to permit the prosecuting attorney to inspect and copy or photograph any results or reports of physical or mental examinations and of scientific tests or experiments made in connection with the particular case, or copies thereof, available to or within the possession or control of the defendant, and which the defendant intends to introduce in evidence at the trial, or which were prepared by a witness whom the defendant intends to call at the trial, when such results or reports relate to his testimony. (c) Witness names and addresses. If on request or motion the defendant obtains discovery under subsection (B)(1)(e), the court shall, upon motion of the prosecuting attorney, order the defendant to furnish the prosecuting attorney a list of the names and addresses of the witnesses he intends to call at the trial. Where a motion for discovery of the names and addresses of witnesses has been made by the prosecuting attorney, the defendant may move the court to perpetuate the testimony of such witnesses in a hearing before the court in which hearing the prosecuting attorney shall have the right of cross-examination. A record of the witness testimony shall be made and shall be admissible at trial as part of the defendant s case in chief in the event the witness has become unavailable through no fault of the defendant. (d) In camera inspection of witness statement. Upon completion of the direct examination, at trial, of a witness other than the defendant, the court on motion of the prosecuting attorney shall conduct an in camera inspection of the witness written or recorded statement obtained by the defense attorney or his agents with the defense attorney and prosecuting attorney present and participating, to determine the existence of inconsistencies, if any, between the testimony of such witness and the prior statement. If the court determines that inconsistencies exist the statement shall be given to the prosecuting attorney for use in cross-examination of the witness as to the inconsistencies. If the court determines that inconsistencies do not exist the statement shall not be given to the prosecuting attorney, and he shall not be permitted to cross-examine or comment thereon. Whenever the prosecuting attorney is not given the entire statement it shall be preserved in the records of the court to be made available to the appellate court in the event of an appeal. Rule

26 (2) Information not subject to disclosure. Except as provided in subsections (C)(1)(b) and (d), this rule does not authorize the discovery or inspection of reports, memoranda, or other internal documents made by the defense attorney or his agents in connection with the investigation or defense of the case, or of statements made by witnesses or prospective witnesses to the defense attorney or his agents. (3) Witness list; no comment. The fact that a witness name is on a list furnished under subsection (C)(1)(c), and that the witness is not called shall not be commented upon at the trial. (D) Continuing duty to disclose. If, subsequent to compliance with a request or order pursuant to this rule, and prior to or during trial, a party discovers additional matter which would have been subject to discovery or inspection under the original request or order, he shall promptly make such matter available for discovery or inspection, or notify the other party or his attorney or the court of the existence of the additional matter, in order to allow the court to modify its previous order, or to allow the other party to make an appropriate request for additional discovery or inspection. (E) Regulation of discovery. (1) Protective orders. Upon a sufficient showing the court may at any time order that the discovery or inspection be denied, restricted or deferred, or make such other order as is appropriate. Upon motion by a party the court may permit a party to make such showing, or part of such showing, in the form of a written statement to be inspected by the judge alone. If the court enters an order granting relief following such a showing, the entire text of the party s statement shall be sealed and preserved in the records of the court to be made available to the appellate court in the event of an appeal. (2) Time, place and manner of discovery and inspection. An order of the court granting relief under this rule shall specify the time, place and manner of making the discovery and inspection permitted, and may prescribe such terms and conditions as are just. (3) Failure to comply. If at any time during the course of the proceedings it is brought to the attention of the court that a party has failed to comply with this rule or with an order issued pursuant to this rule, the court may order such party to permit the discovery or inspection, grant a continuance, or prohibit the party from introducing in evidence the material not disclosed, or it may make such other order as it deems just under the circumstances. (F) Time of motions. A defendant shall make his motion for discovery within twenty-one days after arraignment or seven days before the date of trial, whichever is earlier, or at such reasonable time later as the court may permit. The prosecuting attorney shall make his motion for discovery within seven days after defendant obtains discovery or three days before trial, whichever is earlier. The motion shall include all relief sought under this rule. A subsequent motion may be made only upon showing of cause why such motion would be in the interest of justice Traffic Law Update

27 IN THE MUNICIPAL COURT OF FRANKLIN COUNTY, OHIO STATE OF OHIO : Plaintiff, : vs. : Case No. DEFENDANT NAME, : Defendant. : DEMAND FOR DISCOVERY The defendant requests that the Prosecuting Attorney preserve the following items and provide them to defense counsel: 1. Any written or recorded statement by the defendant or a co-defendant, including police summaries of such statements, and including grand jury testimony by either the defendant or co-defendant. 2. Criminal records of the defendant, a co-defendant, and the record of prior convictions that could be admissible under Rule 609 of the Ohio Rules of Evidence of a witness in the state s case-in-chief, or that it reasonably anticipates calling as a witness in rebuttal. 3. All laboratory or hospital reports, books, papers, documents, photographs, tangible objects, buildings, or places. tests. 4. Results of physical or mental examinations, experiments or scientific 5. Any evidence favorable to the defendant and material to guilt or punishment. 6. All reports from peace officers, the Ohio State Highway Patrol, and federal law enforcement agents. Rule

28 7. Any written or recorded statement by a witness in the state s case-inchief, or that it reasonably anticipates calling as a witness in rebuttal. 8. A written witness list, including the names and addresses of any witness the state intends to call in its case-in-chief, or reasonably anticipates calling in rebuttal or surrebuttal. 9. Written reports from all expert witnesses summarizing the expert witness s testimony, findings, analysis, conclusions, or opinion, including a summary of the expert s qualifications. Respectfully Submitted, Shawn R. Dominy ( ) 3837 Attucks Drive Powell, OH Phone: (614) Attorney for Defendant CERTIFICATE OF SERVICE The undersigned certifies that a copy of the foregoing document has been served by hand delivery upon the Columbus City Prosecutor s Office, 375 South High Street, Columbus, Ohio 43215, this day of, 20. Shawn R. Dominy ( ) Attorney for Defendant 1.22 Traffic Law Update

29 Vega and the Intoxilyzer 8000 Maybe 8000 Will Provide an Opportunity to Restore the Constitutional Right to Present a Defense and the Requirement That Guilt Be Proven Beyond a Reasonable Doubt 2 D. Timothy Huey Attorney at Law Columbus, Ohio

30 Vega and the Intoxilyzer 8000 Maybe 8000 Will Provide an Opportunity to Restore the Constitutional Right to Present a Defense and the Requirement That Guilt Be Proven Beyond a Reasonable Doubt 2 D. Timothy Huey Attorney at Law Columbus, Ohio We question whether even that source code issue will become an issue in Ohio, however, because of the prior Supreme Court rulings in this state which have recognized that the General Assembly has delegated to the Department of Health the responsibility for selecting a testing mechanism. And the General Assembly having done that, the Courts have said in Ohio that it is not up to the Courts then to question the reliability or the function of that machine. Counsel for CMI testifying at the Ohio Department of Health hearing on Approval of the Intoxilyzer 8000 November 25 th, 2008, a hearing where the Ohio Municipal Court Judges Association representative opposed approval of the 8000 due to issues raised in other states. So CMI s advice to the Ohio Department of Health: Just approve it and then rely on Vega in asserting that the defense can t challenge it and the courts are not allowed to question it. STATE v. SELLARDS (1985), OHIO ST. 3D 169 No door however remote and uncertain, ought be closed to an accused in the task of preparing a defense to a criminal charge. Clearly it is wisest to err on the side of openness and disclosure. Adherence to the above-stated Rule will insure that no constitutional right of an accused to due process on a fair trial will be transgressed. Sellards, at Vega and the Intoxilyzer

31 OHIO REV. CODE (D)(1)(B) PROVIDES ONLY THAT: 2.2 Traffic Law Update In any criminal prosecution [for OVI or OVI related offense]...the court may admit evidence on the concentration of alcohol...in the defendant s...breath...at the time of the alleged violation as shown by chemical analysis of the substance withdrawn within three hours of the time of the alleged violation. DAUBERT v. MERRELL DOW PHARMACEUTICALS, 509 U.S. 579 (1993), DISCUSSING WHAT HAPPENS AT TRIAL AFTER EVIDENCE IS FOUND ADMISSIBLE UNDER DAUBERT ANALYSIS: [R]espondent seems to us to be overly pessimistic about the capabilities of the jury, and of the adversary system generally. Vigorous cross examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence. * U.S. CONSTITUTION, SIXTH AMENDMENT In all criminal prosecutions, the accused shall enjoy the right to a...trial, by...jury...to be confronted with the witnesses against him. OHIO CONSTITUTION, ARTICLE 1, 5 The right of trial by jury shall be inviolate. OHIO CONSTITUTION, ARTICLE 1, 10 In any trial, in any court, the party accused shall be allowed to...to meet witnesses face to face...[at]...trial by an impartial jury. BLAKELY v. WASHINGTON, 542 U.S. 296 (2004) [T]he very reason the Framers put a jury-trial guarantee in the Constitution is that they were unwilling to trust government to mark out the role of the jury. CRANE v. KENTUCKY, 476 U.S. 683, 690, 106 S. CT (1986) Whether rooted directly in the Due Process Clause of the Fourteenth Amendment, or in the Compulsory Process or Confrontation clauses of the Sixth Amendment, the Constitution guarantees criminal defendants a meaningful opportunity to present a complete defense, (quoting California v. Trombetta, 467 U.S. 479, 485, 104 S. Ct (1984)). * Citing Rock v. Arkansas, 483 U.S. 44, 61 (1987).

32 GREENE v. LAMBERT, 288 F.3D 1081 (2001) [W]here constitutional rights directly affecting the ascertainment of guilt are implicated, [evidentiary rules] may not be applied mechanistically to defeat the ends of justice, (quoting Chambers v. Mississippi, 410 U.S. 284, 93 S. Ct. 1038, (1973)). CRANE v. KENTUCKY, 476 U.S. 683, 690, 106 S. CT (1986) If they permit the State to exclude competent, reliable evidence when such evidence is central to the defendant s claim of innocence, the guarantee of a meaningful opportunity to present complete defense has not been fulfilled. Crane at 690. That opportunity would be an empty one if the State were permitted to exclude competent, reliable evidence bearing on *** credibility *** when such evidence is central to the defendant's claim of innocence. COLUMBUS v. FOREST, 36 OHIO APP. 3D 169, 522 N.E.2D 52 (1987) Although the guarantee of a fair trial does not mean an error-free or perfect trial, United States v. Hasting (1983), 461 U.S. 499, , due process does require the state to allow the accused to present a complete defense, (quoting Trombetta v. California). Vega and the Intoxilyzer

33 2.4 Traffic Law Update

34 Attachment Vega and the Intoxilyzer

35 2.6 Traffic Law Update

36 Vega and the Intoxilyzer

37 2.8 Traffic Law Update

38 Vega and the Intoxilyzer

39 2.10 Traffic Law Update

40 Vega and the Intoxilyzer

41 2.12 Traffic Law Update

42 Vega and the Intoxilyzer

43 2.14 Traffic Law Update

44 Vega and the Intoxilyzer

45 2.16 Traffic Law Update

46 Vega and the Intoxilyzer

47 2.18 Traffic Law Update

48 Vega and the Intoxilyzer

49 2.20 Traffic Law Update

50 Vega and the Intoxilyzer

51 The Intoxilyzer 8000 Regulations 3 Cleve M. Johnson Attorney at Law Columbus, Ohio

52 The Intoxilyzer 8000 Regulations 3 Cleve M. Johnson Attorney at Law Columbus, Ohio [A]n accused may not make a general attack upon the reliability and validity of the breath testing instrument State v. Vega, 12 Ohio St.3d 185,190, 465 N.E.2d 1303, 1308 (1984). no warranties, expressed or implied, concerning the accuracy, reliability or suitability of this data have been made. Ohio Department of Health web site database, the repository for the data produced by the unquestionably reliable instrument (language removed in early 2011). DIFFERENCES BETWEEN DATAMASTER/INTOX 5000 AND INTOXILYZER 8000 REGULATIONS No log books. o The records are online, not at the machine location: publicapps.odh.ohio.gov/breathinstrument/. The only rules governing retaining records do not say where or by whom. See (G) and (A) and (B). Until early 2011, unlike the log books, the web site had a disclaimer saying they aren t necessarily accurate or reliable: no warranties, expressed or implied, concerning the accuracy, reliability or suitability of this data. These are the only records available. They are presumably good enough to convict your client of an F3 and suspend his license for life but not good enough if there is a governmental liability issue. Was the site improved or was the disclaimer simply removed because; although true, it made ODH look bad? Deficiencies in the site such as lack of repair or out of service information as well as some certification records would tend to indicate the latter. The Intoxilyzer 8000 Regulations 3.1

53 o So where must the records be kept and who is the custodian and who can authenticate the records? Good questions. 3.2 Traffic Law Update Results of instrument checks, controls, certifications, calibration checks and records of service and repairs required to be preserved, identified and retained in accordance with paragraph (A) of rule of the Administrative Code, OC as required by (C) and Ohio Admin. Code (G); however, the rule does not say where. Presumably in cyberspace or on the chips of the individual machines. The thing is, at least as of this writing, all of the wet bath certifications do not appear to be on the web site. Even though they are required to be kept as per the previous paragraph, repair records don t appear to be online even though some machines have been taken out of service. If they are not online, where is the official repository? Requesting these from ODH is probably a good idea. In Marion County, the police department first had and then replaced it with If you check the machine number, there is no indication that it was taken out of service or that it has been repaired. They just stopped using it with no explanation. In Morrow County, the sheriff s office has had three machines. First they got They tried to use it only five times. The first was a refusal, the second the defendant passed, the third was a.148. After that they got two diagnostic fails and entries for that machine disappear. Next came , entries for that machine stop and then machine starts. Again, there is no indication that the machine has been taken out of service and there are no repair records. Are they just sitting somewhere not being used (your tax dollars in action) or did the company take them back? Another lawyer asked me to look at a Pickaway County case. The Highway Patrol machine used there suddenly stopped being used and another was substituted. Since one normally does not stop using things that are functioning well, presumably there was some sort of problem and it was also taken out of service there that is not disclosed in the records. The sum total of the first three departments I checked is that they have returned more machines than they have kept and used. This also happened in less than a year s time. If Pickaway County is added in, they are three for three in terms of counties with machine problems.

54 This leads to a number of questions: o If a machine is taken out of service, shouldn t this be disclosed to the defense? For example, shouldn t the last person tested before the machine went down be informed that there were problems so serious with the machine that it had to be taken out of service? o Is the web site complete and why is there no information about why these machines went out of service? o Since repair records are required to be kept under (G) and they are not online, what does this mean? Is the web site wrong? Does ODH have broken machines sitting around on a shelf somewhere while their warranties expire? Has the factory replaced each machine without repair? o Most importantly, if we can rely upon ODH as a good judge of general reliability as per Vega, how is it that they came to approve a machine that is demonstrably so unreliable? o If a machine is broken but not repaired, why does no regulation require disclosure of this fact? If ODH can t draft regulations right, how can we assume that they got more complex matter of general reliablilty right. o How can anyone authenticate the records of a web site that until recently disclaimed its accuracy? Until early 2011, the below disclaimer appeared on the opening screen of the online database for the 8000 results which can be accessed at The information contained within this web site is deemed to be public information and is generated from computerized records maintained by the Ohio Department of Health and Alcohol and Drug Testing. While every effort is made to assure the data is accurate and current, it must be accepted and used by the recipient with the understanding that no warranties, expressed or implied, concerning the accuracy, reliability or suitability of this data have been made. The Ohio Department of Health, Alcohol and Drug Testing, their agents, and the developers of this web site assume no liability whatsoever associated with the use or misuse of the data contained herein. By accessing or using this web site you agree to the terms. Id. The Intoxilyzer 8000 Regulations 3.3

55 3.4 Traffic Law Update At a motion hearing authentication may not be necessary. See State v. Skimmerhorn, 108 Ohio St.3d 103, 840 N.E.2d 1077, 2006-Ohio-164 (Ohio Feb. 01, 2006) following State v. Edwards, 107 Ohio St.3d 169, 837 N.E.2d 752, 2005-Ohio-6180 (2005) and reversing judge painter s opinion in State v. Skimmerhorn, 162 Ohio App.3d 762, 835 N.E.2d 52, 2005-Ohio-4300 (Ohio App. 1 Dist. Aug. 19, 2005) which held that authentication necessary. If Skimmerhorn is good law, then records carrying the above disclaimer come into evidence at trial without anyone ever claiming that they are any good. This is so because under State v. French (1995), 72 Ohio St.3d 446, 650 N.E.2d 887; once the motion is held, no foundation is necessary at trial. Melendez-Diaz v. Massachusetts, 129 S.Ct. 2527, 174 L.Ed.2d 314, (2009), probably has superceded Skimmerhorn and Edwards and authentication may be necessary notwithstanding the Ohio Supreme Court. Melendez was a continuation along the Crawford line of cases and held that there was a right of confrontation even regarding forensic documents. They have to put a witness on the stand, not just documents. Even if the rules of evidence don t apply under Edwards, the constitution still does. But see State v. Collins 2010 WL (5 th Dist. 10/21/10) which says these records are somehow not testimonial. Potentially in conflict with Collins, however, see State v. Syx, 2010-Ohio-5880 (2ed Dist. 12/3/2010). See also note below regarding ODH testimony for wet bath certification. No local calibration officer. They are not needed because there are: o No weekly instrument checks. The Intoxilyzer 8000 (not a senior operator) automatically performs a dry gas control test before and after every subject test and instrument certification using a dry gas standard traceable to the national institute of standards and technology (NIST). Ohio Admin. Code (B). Note that the regulation (B), not just the instrument display, expressly requires a dry gas before and after every subject test. The way the 8000 s are programmed now, they to two tests for every subject and there is no dry gas between the first and the second subject test. In other words, technically every 8000 test in the state is being done wrong in every case. Jeff Meadows keen legal eye spotted this problem. Again, if the DOH cannot get simple matters like these right, why should we assume without proof that they got general reliability right.

56 Machine is supposed to shut down if out of tolerance (+/-.005) Ohio Admin. Code (B). But there is no requirement that it be taken out of service if it fails the dry gas control test. Ohio Admin. Code (B). o Question, is anyone paying attention to whether the machine is malfunctioning (other than defense attorneys) and taking it in for repairs if there is a problem? Prosecution should have to prove NIST connection. Ohio Admin. Code (B). Should be a certificate online (but who authenticates it). Representative of the director must perform a wet bath instrument certification (not instrument checks or calibrations) at least ONCE EVERY CALENDAR YEAR. Ohio Admin. Code (C). Under the prior regs, if they don t do the weekly instrument check after the test, the test is out. Suppose D is tested at 12:01 a.m. New Years Day. As of the time of his test, the rule had not been complied with. Suppose further that DOH still has not done a wet bath on that machine by the time of his trial three months later. The test should still be out. It looks like no result on any machine is admissible unless DOH has been there that calendar year. Complying with the rule would keep DOH real busy around the beginning of the year. I guess they could wait until they are subpoenaed, come up a bit early and do the wet bath before trial. Under Crawford and Melendez-Diaz, it also looks like live testimony of the representative will also be required in every case in the state. Also need wet bath certification each time dry gas canister changed (C). The instrument is only required to be taken out of service if it fails the wet bath certification. Ohio Admin. Code (C). The Intoxilyzer 8000 Regulations 3.5

57 Said representative of the director must also perform the wet bath certification according to the instrument display for the instrument being certified under Ohio Admin. Code (C). Approved solutions are required which cannot be used after their expiration dates. These requirements are not new but the authority is contained in different subsections than the old rules. See (E). There is, however, no place in the ODH records for indicating the date of first use (Mike Streng pointed this out). The solution is still also required to be refrigerated as before (E). The difference might be the availability of a refrigerator. It is not clear if the machines will come to ODH to be certified or if ODH will go to the machines. If it is the latter, there may be a lot of solution traveling around the state in unrefrigerated cars perhaps being left in superheated closed cars over lunch in the hot sun. o In State v. Ginocchio, 1985 WL 6796 (Ohio App. 1 Dist. May 22, 1985) a five hour and forty-five minute period was held to be acceptable while the solution was in transit within a single police district. See also Village of Granville v. Norris, 1999 WL (Ohio App. 5 Dist. Nov 17, 1999) where a shorter transit was involved. There may still be an issue whether the rule is different where the solutions are staying unrefrigerated for a longer time and traveling throughout the state. So how do they prove the wet bath certification post Melendez (see above)? The ODH person who did the wet bath has to testify in every case in the state! No more senior operators. What if they ignore confrontation and try to use the records? As indicated above, neither the first use date nor the use of refrigeration are indicated in the ODH records and thus they cannot prove this from records alone. The records are insufficient. o Representatives of the DOH expressly do not need to have permits or, for that matter, be qualified in any way. Ohio Admin. Code (D). 3.6 Traffic Law Update

58 o Permits/ operator cards for 8000 (OH-5) s do not expire (E). Persons with operator access cards for the 8000 appear to have to do proficiency exams once per calendar year under o There is some sloppy drafting: (D) provides: Individuals desiring to function as operators who apply for or are issued an operator access card under paragraph (C) of rule of the Administrative Code, shall be subject to a proficiency examination once per calendar year conducted at the director s discretion. o But, (C) doesn t say anything about access cards: Permits issued after the effective date of this rule under paragraphs (A) and (B) of this rule [(A) & (B) refer to lab directors permits] shall expire one year from the effective date, unless revoked prior to the expiration date. An individual holding a permit may seek renewal of an issued permit by the director under paragraphs (A) and (B) of this rule by filing an application with the director no sooner than six months before the expiration date of the current permit. The director shall not renew the permit if the permit holder is in proceedings for revocation of his or her current permit under rule of the Administrative code. [It doesn t matter for these purposes but (A) above applies to laboratories and (B) above applies to Datamasters, 5000 s and the natural resources 8000 s but not to the new 8000 s]. Here is the problem: The proficiency requirement of (D) only seems to apply if one is issued an access card under (C). The problem is that (C) doesn t say anything about issuing access cards. Therefore nobody has an access card under (C) and thus nobody has to have a proficiency exam under (D). They probably meant to say permit instead of access card in (D) but they didn t. The Intoxilyzer 8000 Regulations 3.7

59 3.8 Traffic Law Update o If there really is a proficiency requirement for the 8000 s under , then the requirement specified is once per calendar year also. In such a case, every New Years Day, everyone in the state becomes unable to use an 8000 until they have done a proficiency test. While it could be argued that this just means it has to be done sometime in the calendar year. If you think this through, that is impractical. If anytime during the year were to be the rule, theoretically one would never know if an operator who had not done his proficiency was qualified until New Years day of the succeeding year. Do we decide the case on the basis of the evidence at the time of trial? Continue the case until the next year? Move to set aside the conviction if the officer does not subsequently proficiency? o The question is, can the prosecution prove that the operator was in compliance with the rule which requires a proficiency during calendar year that the subject test was given. The court would essentially be finding the defendant guilty based upon an assumption or upon the speculation that the officer would prove proficient at some later date. The officer could fail, die, retire, get fired, sick, etc. Court decisions should be based upon evidence, not speculation. o Now the harder case, and the one I would take up if I were a prosecutor, would be where the officer had not done a proficiency at the time of the test but did so later before the hearing. My guess is that there it would be like admitting evidence of the calibration/instrument check after D s test. That would probably be OK. It is true that there is old authority suggesting that failure to do proficiency exams does not require suppression. See, State v. Love, 1996 WL (Ohio App. 6 Dist. 1996): Appellant incorrectly asserts that proficiency examinations are required of individuals who are issued permits to conduct breathalyzer tests. Ohio Admin. Code (A) states

60 only that survey[s] or proficiency examination [s] may be conducted whenever it is considered necessary. Thus, a proficiency examination is not mandatory. Furthermore, a proficiency test was performed in this case. Id. 2 (emphasis added). o Even so, this authority should be inapplicable because the current regulation is significantly different than the old one. Current (D) provides: o Individuals desiring to function as operators who apply for or are issued an operator access card under paragraph (C) of rule of the Administrative Code, shall be subject to a proficiency examination once per calendar year conducted at the director s discretion. Id. (emphasis added). No more RFI checks. RFI check never needs to be done (A) is the only rule that mentions RFI but subsection (A) does not apply to the 8000 (OH-5) s. Manual incorporated into regulations. While this may not be technically true, as a practical matter, this is virtually the case. Under (E) breath samples shall be analyzed according to the instrument display for the instrument being used. So how do you tell what the display requires if you don t own a machine with the Ohio version of the software (no private owners have the Ohio software? o The ODH manual shows machine displays and describes the process. It can be downloaded at: /alc_drug/forms.aspx. Unfortunately, the manual does not have everything. For example, one result the machine will display is what is termed as an improper sample. This term, however, does not appear in the manual. So is an improper sample admissible? Intuitively, the answer would seem to be no. How can you convict someone on the basis of a test that is improper. Even so, there appears to be no regulation prohibiting this. The question then becomes whether Ohio should be following regulations which make improper samples admissible. The Intoxilyzer 8000 Regulations 3.9

61 The other point to keep in mind is that the regulations and the manual are insufficient since they do not cover all the things the machine does. If they can t get the regulations and the manual right, why should we assume that they got general reliability right? o So why are machine displays important? You may think the 20 minute rule is still in effect or you may have heard that the 8000 regulations require dual testing. It is a bit more complicated than this. There is no regulation that discusses either one of these things specifically. The way these things come about is through incorporation of the machine displays. o Page 19 of the ODH manual shows the screen display and talks about the 20 minute rule. The manual indicates that the machine will not accept a sample before 20 minutes have passed. The only problem with this is that it isn t true. I know of at least one case where a sample was tested less than 20 minutes from the ticket time (no link given because this was a client test and can t block the name). If the machine can t tell time, is it any better at testing alcohol?. Is the manual wrong or is the machine software wrong? If it is the latter, is it generally reliable? o Similarly, dual testing does not appear anywhere in the regulations other than by reference to the screen displays. The ODH could change this tomorrow and no regulation change would be necessary. o There is even a question as to whether dual testing is actually required under the current rule. The testing sequence on pages of the manual shows a dual test. It also requires a.020 agreement between the tests (manual page 59). What if Δ refuses to take the second test, is the first one out. What if there is a technical problem with one, but not both tests? Can a single test be used? It would seem that there is no.020 agreement if there is only one test. Here is a link to a case where there was only one test and the 8000 printed out a test result even thought there was no.020 agreement (there are a number of others): Instrument/Testreport.aspx?id=5236. Page 59 of the manual indicates that if there is no.020 agreement: The instrument will print an INVALID TEST report ; however, this did not happen. Again, is the manual wrong or is the machine software wrong? If it is the latter, is it generally reliable? 3.10 Traffic Law Update

62 o Diagnostic fails: Page 37 of the manual indicates that the machine will automatically do a self diagnostic test. Note that p. 37 also indicates that if there are two diagnostic fails, they are supposed to discontinue using the machine. If you take a look at the two links below you will see an example where there were two diagnostic fails in a row and they keep using the machine for another couple of months. Actually another double failure occurs later as well and they still do four more tests before they stop using the machine. One problem with the new regs is that nobody is minding the store. There is no calibration officer to take the machine out of service if there is a problem. In other words, we are the only ones minding the store. Again, this is not in the regulations, only the screen prompts. Note also that there are no indications of any repairs or out of service notations (as of this submission date things do tend to be added to the web site once a problem surfaces). = =3036 o It should be noted that there is a question here as to whether there is a problem with a procedure that lets the ODH change the regulations at will without JACAR approval. Further discussion of this issue is beyond the scope of this topic. o There are probably many more issues/problems that arise in the context of the manual/screen displays. This is a new area and more will be discovered as we have more experience with the new machines. Odd effect of 8000 rules on Datamaster/Intox 5000 cases. The following is not a rule applicable to the 8000; however, in a bizarre way the 8000 rules may affect an officer s ability to use a Datamaster or a Intoxilyzer 5000 o Ohio Admin. Code (D) provides in part that Individuals desiring to function as operators using instruments listed under paragraph (A)(3) of rule of the Administrative Code shall apply to the director of health for operator access cards The only instrument listed in the aforementioned paragraph (A)(3) is the Intoxilyzer 8000 (OH-5). Operators of the other authorized machines get permits rather than operator s cards. See Ohio Admin. Code (B). Note that there is another Intoxilyzer 8000 that does have a permit, the OH-2. These machines; however, are useable only by natural resources officers in watercraft situations. The Intoxilyzer 8000 Regulations 3.11

63 3.12 Traffic Law Update o Ohio Admin. Code (D) provides that an operator who has previously been issued an operator access card for an Intoxilyzer 8000 shall use only those evidential breath testing instruments for which they have been issued an operator access card. Since there are no access cards for either the Datamaster or the 5000, the rule technically prohibits them from using these machines. This is Jeremy Wright s idea. o It should also be noted that there is a fundamental difference between senior operator s certificates and operator access cards. The senior operator s certificate is just a piece of paper. The operator access card for the 8000 is meant to be swiped into the machine to enter operator information and allow access. There is no such card for the Datamaster. Another indication that cards are not the same thing as permits is that, unlike permits, operator access cards do not expire. See Ohio Admin. Code (E). o By the way, this was not a drafting error. It was intentional. The idea was to use the new machines as data collection devices and using the old machines once new ones were available would thwart this goal. o If the calibration officer has an 8000 card, all the Datamaster/Intox 5000 tests may be inadmissible. Can one perform an instrument check on a machine without using it? I don t see how. I don t think an air guitar instrument check would satisfy the regulations. The only other alternative is actually using the machine. If the senior operator isn t allowed to use a Datamaster, he/she isn t authorized by the regulations to do an instrument check. We know that not just anyone can do an instrument check. They have to be authorized to do so under the regulations. An instrument check done by an operator rather than a senior operator would not qualify. Nor would one done by someone who never had a permit or someone with an expired permit. If the instrument check is not done as required by the regulations, there is no instrument check and any tests are inadmissible Biased defense attorney question: The idea behind Vega is that the regulatory process ensures that everything is done right. If the regs are followed, the machine is error free. Not only can general reliability be assumed, it can t even be challenged. So when we look over the regs, what we have to ask is, is that true? Do the regulations show that the drafters got everything right? o If the DOH can t get simple regulations right, why should we assume without proof that they can get the complex science which underlies the machine right? If other states are rejecting this machine

64 as unreliable, shouldn t we at least look at the issue? While the courts may be fixing the bad regulations, who is fixing the bad science? The answer is nobody. There are no checks and balances here. Nobody is even looking at the issue and that s just not right. What justification is there then for Vega? The Intoxilyzer 8000 Regulations 3.13

65 3.14 Traffic Law Update

66 Attachment The Intoxilyzer 8000 Regulations 3.15

67 3.16 Traffic Law Update

68 Ohio Administrative Code * Department of Health - Administration and Director Chapter Alcohol Testing Updated for all rules final filed and adopted through March 28, Techniques or methods (A) Tests to determine the concentration of alcohol may be applied to blood, breath, urine, or other bodily substances. Results shall be expressed as equivalent to: (1) Grams by weight of alcohol per one hundred milliliters of whole blood, blood serum or plasma (grams per cent by weight); (2) Grams by weight of alcohol per two hundred ten liters of deep lung breath; (3) Grams by weight of alcohol per one hundred milliliters of urine (grams per cent by weight). (4) Nanograms by weight of a controlled substances or a metabolite or a controlled substance per milliliter of blood, urine, or other bodily substance. The results of the tests shall be retained for not less than three years. (B) At least one copy of the written procedure manual required by paragraph (D) of rule of the Administrative Code for performing blood, urine, or other bodily substance tests shall be on file in the area where the analytical tests are performed. History. Effective: 01/08/2009 R.C review dates: 10/22/2008 and 01/01/2014 Promulgated Under: Statutory Authority: Rule Amplifies: , , , , Prior Effective Dates: 3/1/1968, 2/1/76, 3/15/83 (Emer.), 6/13/83, 1/1/87, 7/7/97, 9/30/ Breath tests (A) The instruments listed in this paragraph are approved as evidential breath testing instruments for use in determining whether a person s breath contains a concentration of alcohol prohibited or defined by sections , and/or of the Revised Code, or any other equivalent statute or local ordinance prescribing a defined or prohibited breath-alcohol concentration. The approved evidential breath testing instruments are: (1) BAC DataMaster, BAC DataMaster K, BAC DataMaster cdm; * Highlighted text indicates new material. The Intoxilyzer 8000 Regulations 3.17

69 (2) Intoxilyzer model 5000 series 66, 68 and 68 EN; and (3) Intoxilyzer model 8000 (OH-5). (B) The instruments listed in this paragraph are approved as additional evidential breath testing instruments for use in determining whether a person s breath contains a concentration of alcohol prohibited or defined by section of the Revised Code, or any other equivalent statute or local ordinance prescribing a defined or prohibited breath alcohol concentration. The approved evidential breath testing instrument is: (1) Intoxilyzer model 8000 (OH-2). (C) Breath samples of deep lung (alveolar) air shall be analyzed for purposes of determining whether a person has a prohibited breath alcohol concentration with instruments approved under paragraphs (A) and (B) of this rule. (D) Breath samples using instruments listed under paragraphs (A)(1), (A)(2) and (B) of this rule shall be analyzed according to the operational checklist for the instrument being used and checklist forms recording the results of subject tests shall be retained in accordance with paragraph (A) of rule of the Administrative Code. The results shall be recorded on forms prescribed by the director of health. (E) Breath samples using the instrument listed under paragraph (A)(3) of this rule shall be analyzed according to the instrument display for the instrument being used. The results of subject tests shall be retained in a manner prescribed by the director of health and shall be retained in accordance with paragraph (A) of rule of the Administrative Code. History. Effective: 01/08/2009 R.C review dates: 10/22/2008 and 01/01/2014 Promulgated Under: Statutory Authority: Rule Amplifies: , , , , Prior Effective Dates: 3/1/1968, 2/1/76, 3/15/83 (Emer.), 6/13/83, 1/1/87, 5/5/90, 12/12/94, 9/14/95 (Emer.), 7/7/97, 9/30/ Blood, urine and other bodily substance tests (A) Alcohol in blood, urine and other bodily substances shall be analyzed based on approved techniques or methods. The technique or method must have documented sensitivity, specificity, accuracy, precision and linearity. The technique or method can be based on procedures which have been published in a peer reviewed or juried scientific journal or thoroughly documented by the laboratory. Approved techniques or methods include: (1) Gas chromatography; and 3.18 Traffic Law Update

70 (2) Enzyme assays. (B) Controlled substances or metabolites of a controlled substance as defined in section , and drugs of abuse as defined in section of the Revised Code in blood, urine, and other bodily substances shall be analyzed using techniques or methods approved by the director of health as part of the permit process as specified in rules and of the Administrative Code. The approved analytical techniques or methods are: (1) Immunoassay; (2) Thin-layer chromatography; (3) Gas chromatography; (4) Mass spectroscopy; (5) High performance liquid chromatography; or (6) Spectroscopy. All positive results of tests specified in paragraph (B) of this rule must be confirmed by one or more dissimilar analytical techniques or methods and must be part of a testing procedure. The analytical techniques or methods used for confirmation must have similar or improved sensitivity, specificity, accuracy, precision and linearity. The approved techniques or methods can be based on procedures which have been published in a peer reviewed or juried scientific journal or thoroughly documented by the laboratory. History. Effective: 01/08/2009 R.C review dates: 10/22/2008 and 01/01/2014 Promulgated Under: Statutory Authority: Rule Amplifies: , , , , Prior Effective Dates: 3/1/1968, 3/15/83 (Emer.), 6/13/83, 1/1/87, 5/5/90, 7/7/97, 9/30/ Instrument checks, controls and certifications (A) A senior operator shall perform an instrument check on approved evidential breath testing instruments listed under paragraphs (A)(1), (A)(2), and (B) of rule no less frequently than once every seven days in accordance with the appropriate instrument checklist for the instrument being used. The instrument check may be performed anytime up to one hundred and ninety-two hours after the last instrument check. (1) The instrument shall be checked to detect radio frequency interference (RFI) using a hand-held radio normally used by the law enforcement agency performing the instrument check. The RFI detector check is valid when the evidential breath testing instrument detects RFI or aborts a subject test. If the RFI detector check is not valid, the instrument shall not be used until the instrument is serviced. The Intoxilyzer 8000 Regulations 3.19

71 (2) An instrument shall be checked using a solution containing ethyl alcohol approved by the director of health. An instrument check result is valid when the result of the instrument check is at or within five one-thousandths ( ) grams per two hundred ten liters of the target value for that approved solution. An instrument check result which is outside the range specified in this paragraph shall be confirmed by the senior operator using another bottle of approved solution. If this instrument check result is also out of range, the instrument shall not be used until the instrument is serviced or repaired. (B) Instruments listed under paragraph (A)(3) of rule of the Administrative Code shall automatically perform a dry gas control test before and after every subject test and instrument certification using a dry gas standard traceable to the national institute of standards and technology(nist). Dry gas control results are valid when the results are at or within five one-thousandths ( ) grams per two hundred ten liters of the alcohol concentration on the manufacturer s certificate of analysis for that dry gas standard. A dry gas control result which is outside the range specified in this paragraph will abort the subject test or instrument certification in progress. (C) Representatives of the director shall perform an instrument certification on approved evidential breath testing instruments listed under paragraph (A) (3) of rule of the Administrative Code using a solution containing ethyl alcohol approved by the director of health according to the instrument display for the instrument being certified. An instrument shall be certified no less frequently than once every calendar year or when the dry gas standard on the instrument is replaced, whichever comes first. Instrument certifications are valid when the certification results are at or within five one-thousandths grams per two hundred ten liters of the target value for that approved solution. Instruments with certification results outside the range specified in this paragraph will require the instrument be removed from service until the instrument is serviced or repaired. Certification results shall be retained in a manner prescribed by the director of health. (D) An instrument check or certification shall be made in accordance with paragraphs (A) and (C) of this rule when a new evidential breath testing instrument is placed in service or when the instrument is returned after service or repairs, before the instrument is used to test subjects. (E) A bottle of approved solution shall not be used more than three months after its date of first use, or after the manufacturer s expiration date on the approved solution certificate, whichever comes first. After first use, a bottle of approved solution shall be kept under refrigeration when not being used. The approved solution bottle shall be retained for reference until that bottle of approved solution is discarded. (F) Each testing day, the analytical techniques or methods used in rule of the Administrative Code shall be checked for proper calibration under the general direction of the designated laboratory director. General direction does not mean that the designated laboratory director must be physically present during the performance of the calibration check. (G) Results of instrument checks, controls, certifications, calibration checks and records of service and repairs shall be retained in accordance with paragraph (A) of rule of the Administrative Code Traffic Law Update

72 History. Effective: 01/08/2009 R.C review dates: 10/22/2008 and 01/01/2014 Promulgated Under: Statutory Authority: Rule Amplifies: , , , , Prior Effective Dates: 3/1/1968, 2/1/76, 3/15/83 (Emer.), 6/13/83, 1/1/87, 5/5/90, 7/7/97, 3/30/01, 9/30/ Collection and handling of blood and urine specimens (A) All samples shall be collected in accordance with section , or section of the Revised Code, as applicable. (B) When collecting a blood sample, an aqueous solution of a non-volatile antiseptic shall be used on the skin. No alcohols shall be used as a skin antiseptic. (C) Blood shall be drawn with a sterile dry needle into a vacuum container with a solid anticoagulant, or according to the laboratory protocol as written in the laboratory procedure manual based on the type of specimen being tested. (D) The collection of a urine specimen must be witnessed to assure that the sample can be authenticated. Urine shall be deposited into a clean glass or plastic screw top container which shall be capped, or collected according to the laboratory protocol as written in the laboratory procedure manual (E) Blood and urine containers shall be sealed in a manner such that tampering can be detected and have a label which contains at least the following information: (1) Name of suspect; (2) Date and time of collection; (3) Name or initials of person collecting the sample; and (4) Name or initials of person sealing the sample. (F) While not in transit or under examination, all blood and urine specimens shall be refrigerated. History. Effective: 01/08/2009 R.C review dates: 10/22/2008 and 01/01/2014 Promulgated Under: Statutory Authority: Rule Amplifies: , , , , Prior Effective Dates: 3/1/1968, 3/15/83 (Emer.), 6/13/83, 1/1/87, 5/5/90, 9/14/94 (Emer.), 12/12/94, 1/4/96 (Emer.), 3/19/96 (Emer.), 6/13/96, 7/7/97, 9/30/02 The Intoxilyzer 8000 Regulations 3.21

73 Laboratory requirements (A) Chain of custody and the test results for evidential alcohol and drugs of abuse shall be identified and retained for not less than three years, after which time the documents may be discarded unless otherwise directed in writing from a court. All positive blood, urine and other bodily substances shall be retained in accordance with rule of the Administrative Code for a period of not less than one year, after which time the specimens may be discarded unless otherwise directed in writing from a court. (B) The laboratory shall successfully complete a national proficiency testing program using the applicable technique or method for which the laboratory personnel seek a permit under rule of the Administrative Code. (C) The laboratory shall have a written procedure manual of all analytical techniques or methods used for testing of alcohol or drugs of abuse in bodily substances. Textbooks and package inserts or operator manuals from the manufacturer may be used to supplement, but may not be used in lieu of the laboratory s own procedure manual for testing specimens. (D) The designated laboratory director shall review, sign, and date the procedure manual as certifying that the manual is in compliance with this rule. The designated laboratory director shall ensure that: (1) Any changes in a procedure be approved, signed, and dated by the designated laboratory director; (2) The date the procedure was first used and the date the procedure was revised or discontinued is recorded; (3) A procedure shall be retained for not less than three years after the procedure was revised or discontinued, or in accordance with a written order issued by any court to the laboratory to save a specimen that was analyzed under that procedure; (4) Laboratory personnel are adequately trained and experienced to perform testing of blood, urine and other bodily substances for alcohol and drugs of abuse and shall ensure, maintain and document the competency of laboratory personnel. The designated laboratory director shall also monitor the work performance and verify the skills of laboratory personnel; (5) The procedure manual includes the criteria the laboratory shall use in developing standards, controls, and calibrations for the technique or method involved; and (6) A complete and timely procedure manual is available and followed by laboratory personnel. (E) Any time the designated laboratory director is replaced, another permitted laboratory director or applicant shall be designated and approved by the director Traffic Law Update

74 History. Effective: 01/08/2009 R.C review dates: 10/22/2008 and 01/01/2014 Promulgated Under: Statutory Authority: Rule Amplifies: Prior Effective Dates: 7/7/1997, 9/30/ Qualifications of personnel (A) Blood, urine, and other bodily substance tests for alcohol shall be performed in a laboratory by an individual who has a laboratory director s permit or, under his or her general direction, by an individual who has a laboratory technician s permit. General direction does not mean that the laboratory director must be physically present during the performance of the test. Laboratory personnel shall not perform a technique or method of analysis that is not listed on the laboratory director s permit. (1) An individual who is employed by a laboratory, which has successfully completed a proficiency examination administered by a national program for proficiency testing for the approved technique or method of analysis for which the permit is sought and who possesses at least two academic years of college chemistry and at least two years of experience in a clinical or chemical laboratory and possesses a minimum of a bachelor s degree shall meet the qualifications for a laboratory director s permit. (2) An individual who is employed by a laboratory, which has successfully completed a proficiency examination administered by a national program for proficiency testing for the approved technique or method of analysis for which the permit is sought, has been certified by the designated laboratory director that he or she is competent to perform all procedures contained in the laboratory s procedure manual for testing specimens and meets one of the following requirements shall meet the qualifications for a laboratory technician s permit: (a) Has a bachelor s degree in laboratory sciences from an accredited institution and has six months experience in laboratory testing; (b) Has an associate s degree in laboratory sciences from an accredited institution or has completed sixty semester hours of academic credit including six semester hours of chemistry and one year experience in laboratory testing; (c) Is a high school graduate or equivalent and has successfully completed an official military laboratory procedures course of at least fifty weeks duration and has held the military enlisted occupational specialty of medical laboratory specialist (laboratory technician); or (d) Is a high school graduate or equivalent and was permitted on or before July 7, The Intoxilyzer 8000 Regulations 3.23

75 (B) Blood, urine and other bodily substances tests for drugs of abuse shall be performed in a laboratory by an individual who has a laboratory director s permit or, under his or her general direction, by an individual who has a laboratory technician s permit. General direction does not mean that the laboratory director must be physically present during the performance of the test. Laboratory personnel shall not perform a technique or method of analysis that is not listed on the laboratory director s permit. (1) An individual who is employed by a laboratory, which has successfully completed a proficiency examination administered by a national program for proficiency testing for the approved technique or method of analysis for which the permit is sought, who possesses at least two academic years of college chemistry and meets one of the following requirements shall meet the qualifications for a laboratory director s permit: (a) Has at least five years of experience in a clinical or chemical laboratory and possesses a minimum of a bachelor s degree in laboratory sciences; (b) Has at least three years of experience in a clinical or chemical laboratory and possesses a minimum of a master s degree; or (c) Has at least two years of experience in a clinical or chemical laboratory and possesses a minimum of an earned doctoral degree. (2) An individual who is employed by a laboratory, which has successfully completed a proficiency examination administered by a national program for proficiency testing for the approved technique or method of analysis for which the permit is sought, has been certified by the designated laboratory director that he or she is competent to perform all procedures contained in the laboratory s procedure manual for testing specimens and meets one of the following requirements shall meet the qualifications for a laboratory technician s permit: (a) Has a bachelor s degree in laboratory sciences from an accredited institution and has one year experience in laboratory testing; (b) Has an associate s degree in laboratory sciences from an accredited institution or has completed sixty semester hours of academic credit including six semester hours of chemistry and two years experience in laboratory testing; (c) Is a high school graduate or equivalent and has successfully completed an official military laboratory procedures course of at least fifty weeks duration and has held the military enlisted occupational specialty of medical laboratory specialist (laboratory technician) and two years experience in laboratory testing; or (d) Is a high school graduate or equivalent and was permitted on or before July 7, (C) Breath tests used to determine whether a person s breath contains a concentration of alcohol prohibited or defined by sections and/or of the Revised Code, or any other equivalent statute or local ordinance prescribing a defined or prohibited 3.24 Traffic Law Update

76 breath alcohol concentration shall be performed by a senior operator or an operator. A senior operator shall be responsible for the care, maintenance and instrument checks of the approved evidential breath testing instruments listed in paragraphs (A)(1), (A)(2), and (B) of rule of the Administrative Code. Representatives of the director shall be responsible for the instrument certifications on approved evidential breath testing instruments listed under paragraph (A)(3) of rule of the Administrative Code. (D) An individual meets the qualifications for a senior operator s permit by: (1) Being a high school graduate or having passed the General Education Development Test ; (2) Being a certified law enforcement officer sworn to enforce sections and/or of the Revised Code, or any other equivalent statute or local ordinance prescribing a defined or prohibited breath alcohol concentration, or a certified corrections officer, and; (3) Having demonstrated that he or she can properly care for, maintain, perform instrument checks upon and operate the evidential breath testing instrument by having successfully completed a basic senior operator, upgrade or conversion training course for the type of approved evidential breath testing instrument for which he or she seeks a permit. (E) An individual meets the qualifications for an operator s permit by: (1) Being a high school graduate or having passed the General Education Development Test ; (2) Being a certified law enforcement officer sworn to enforce sections and/or of the Revised Code, or any other equivalent statute or local ordinance prescribing a defined or prohibited breath alcohol concentration, or a certified corrections officer, and; (3) Having demonstrated that he or she can properly operate the evidential breath testing instrument by having successfully completed a basic operator or conversion training course for the type of approved evidential breath testing instrument for which he or she seeks a permit. History. Effective: 01/08/2009 R.C review dates: 10/22/2008 and 01/01/2014 Promulgated Under: Statutory Authority: Rule Amplifies: , , , , Prior Effective Dates: 3/1/1968, 1/1/87, 5/5/90, 9/14/97 (Emer.), 12/12/97, 7/7/97, 9/30/02 The Intoxilyzer 8000 Regulations 3.25

77 Surveys and proficiency examinations (A) Individuals desiring to function as laboratory directors and laboratory technicians who apply for or are issued permits under paragraph (A) of rule of the Administrative Code shall be subject to surveys and proficiency examinations by representatives of the director of health. A survey or proficiency examination may be conducted at the director s discretion. (1) A survey shall consist of a review of the permit holder s, applicant s or laboratory s compliance with the requirements of this chapter. (2) A proficiency examination shall consist of an evaluation of the permit holder s, applicant s or laboratory s ability to test samples provided by a representative of the director, or has successfully completed a proficiency examination administered by a national program for proficiency testing using the techniques or methods for which the permit is held or sought. Proficiency examination samples may be: (a) Mailed to the facility at which the permit holder or applicant uses or plans to use the permit; or (b) Presented in person by a representative of the director at the facility where the permit holder or applicant uses or plans to use the permit. (B) During proficiency examinations, laboratory directors, laboratory technicians and applicants shall accept samples, perform tests, and report all test results to a representative of the director or the national program that administered the proficiency testing. During surveys and proficiency examinations, permit holders, applicants and laboratories shall grant the director s representatives access to all portions of the facility where the permit is used or is intended to be used and to all records relevant to compliance with the requirements of this chapter. (C) Individuals desiring to function as senior operators and operators who apply for or are issued permits under paragraph (B) of rule of the Administrative Code, shall be subject to surveys and proficiency examinations conducted at the director s discretion. (1) A survey shall consist of a review of the permit holder s or applicant s compliance with the requirements of this chapter. (2) A proficiency examination shall consist of an evaluation of the permit holder s or applicant s ability to test samples using the evidential breath testing instrument for which the permit is held or sought. (D) Individuals desiring to function as operators who apply for or are issued an operator access card under paragraph (C) of rule of the Administrative Code, shall be subject to a proficiency examination once per calendar year conducted at the director s discretion Traffic Law Update

78 (E) During proficiency examinations, senior operators, operators and applicants shall accept samples, perform tests and report all results to a representative of the director or the proficiency examination administered by a national program for proficiency testing. During surveys and proficiency examinations, permit holders, applicants and laboratories shall grant the director s representatives access to all portions of the facility where the permit is used or is intended to be used, and to all records relevant to compliance with the requirements of this chapter. History. Effective: 01/08/2009 R.C review dates: 10/22/2008 and 01/01/2014 Promulgated Under: Statutory Authority: Rule Amplifies: , , , , Prior Effective Dates: 3/1/1968, 5/5/90, 7/7/97, 9/30/ Permits and operator access cards (A) Individuals desiring to function as laboratory directors or laboratory technicians shall apply to the director of health for permits on forms prescribed and provided by the director. A separate application shall be filed for a permit to perform tests to determine the amount of alcohol in a person s blood, urine or other bodily substance, and a separate permit application shall be filed to perform tests to determine the amount of drugs of abuse in a person s blood, urine or other bodily substance. A laboratory director s and laboratory technician s permit is only valid for the laboratory indicated on the permit. (1) The director shall issue permits to perform tests to determine the amount of alcohol in a person s blood, urine or other bodily substance to individuals who qualify under the applicable provisions of rule of the Administrative Code or under paragraph (A) of this rule. Laboratory personnel holding permits issued under this rule shall use only those laboratory techniques or methods for which they have been issued permits. (a) The laboratory where the permit holder is employed shall have successfully completed a proficiency examination from a national program for proficiency testing using the applicable techniques or methods, and provide to representatives of the director all proficiency test results. (b) Permit holders shall successfully complete proficiency examinations by representatives of the director using the techniques or methods for which they have been issued permits. (2) The director shall issue permits to perform tests to determine the amount of drugs of abuse in a person s blood, urine or other bodily substances to individuals who qualify under the applicable provisions of rule of the Administrative Code or under paragraph (A) of this rule. Laboratory personnel holding permits issued under this rule shall use only those laboratory techniques or methods for which they have been issued permits. The Intoxilyzer 8000 Regulations 3.27

79 The laboratory where the permit holder is employed shall have successfully completed a proficiency examination from a national program for proficiency testing using the applicable techniques or methods, and provide to representatives of the director all proficiency results. (B) Individuals desiring to function as senior operators or operators using instruments listed under paragraphs (A)(1), (A)(2), and (B) of rule of the Administrative Code shall apply to the director of health for permits on forms prescribed and provided by the director of health. A separate application shall be filed for each type of evidential breath testing instrument for which the permit is sought. The director of health shall issue permits to perform tests to determine the amount of alcohol in a person s breath to individuals who qualify under the applicable provisions of rule of the Administrative Code. Individuals holding permits issued under this rule shall use only those evidential breath testing instruments for which they have been issued a permit. (C) Permits issued after the effective date of this rule under paragraphs (A) and (B) of this rule shall expire one year from the effective date, unless revoked prior to the expiration date. An individual holding a permit may seek renewal of an issued permit by the director under paragraphs (A) and (B) of this rule by filing an application with the director no sooner than six months before the expiration date of the current permit. The director shall not renew the permit if the permit holder is in proceedings for revocation of his or her current permit under rule of the Administrative code. (D) Individuals desiring to function as operators using instruments listed under paragraph (A)(3) of rule of the Administrative Code shall apply to the director of health for operator access cards on forms prescribed and provided by the director of health. The director of health shall issue operator access cards to perform tests to determine the amount of alcohol in a person s breath to individuals who qualify under the applicable provisions of rule of the Administrative Code. Individuals holding operator access cards issued under this rule shall use only those evidential breath testing instruments for which they have been issued an operator access card. (E) Operator access cards issued under paragraph (D) of this rule shall not expire unless revoked by the director under rule of the Administrative Code. To retain an operator access card under paragraph (D) of this rule the individual shall present evidence satisfactory to the director that he or she continues to meet the qualifications established by the applicable provisions of rules and of the Administrative Code for issuance of the operator access card sought. (F) To qualify for renewal of a permit under paragraph (A) or (B) of this rule: (1) A permit holder shall present evidence satisfactory to the director that he or she continues to meet the qualifications established by the applicable provisions of rule of the Administrative Code for issuance of the type of permit sought Traffic Law Update

80 (2) If the individual seeking a renewal permit currently holds a laboratory technician or laboratory director permit, the permit holder shall meet the requirements of paragraph (A) of this rule. (3) If the individual seeking a renewal permit currently holds an operator or senior operator permit, the permit holder shall have completed satisfactorily an in-service course for the applicable type of evidential breath testing instrument which meets the requirements of paragraph (B) of this rule, which includes review of self-study materials furnished by the director. (G) The director, director s designee or individuals appointed by the director of health are not required to retain permits or operator access cards while acting as representatives of the director. History. Effective: 01/08/2009 R.C review dates: 10/22/2008 and 01/01/2014 Promulgated Under: Statutory Authority: Rule Amplifies: Prior Effective Dates: 3/1/1968, 1/1/87, 5/5/90, 9/14/94 (Emer.), 12/12/97, 7/7/97, 9/30/ Revocation, suspension and denial of permits or operator access cards The director of health may deny, suspend or revoke the permit or operator access card of any permit holder or individual: (A) Who obtains or seeks to obtain a permit or operator access card falsely or deceitfully; (B) Who fails to comply with any of the provisions of rules to of the Administrative Code; or (C) Who: (1) As a senior operator, fails to demonstrate that he or she can properly care for, maintain, perform instrument checks upon, and operate the breath testing instrument for which the permit is held; (2) As an operator, fails to demonstrate that he or she can properly operate the breath testing instrument for which the permit or operator access card is held; (3) As a laboratory director or laboratory technician, fails to demonstrate that he or she can properly perform the technique or method of analysis for which the permit is held; or (4) As the designated laboratory director, fails to comply with paragraph (D) of rule of the Administrative Code. The Intoxilyzer 8000 Regulations 3.29

81 History. Effective: 01/08/2009 R.C review dates: 10/22/2008 and 01/01/2014 Promulgated Under: Statutory Authority: Rule Amplifies: Prior Effective Dates: 3/1/1968, 1/1/87, 5/5/90, 7/7/97, 9/30/ Traffic Law Update

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103 Case Law Update: A Collection of Recent Cases of General Interest 4 Honorable Kenneth R. Spanagel 1 Parma Municipal Court Cleveland, Ohio The author wishes to thank Judge Jennifer Weiler, Garfield Heights Municipal Court, for her assistance in preparing this chapter.

104 Case Law Update: A Collection of Recent Cases of General Interest 4 Honorable Kenneth R. Spanagel Parma Municipal Court Cleveland, Ohio CHARGING THE OFFENSE Criminal Rule 3 provides in part, the complaint is a written statement of the essential facts constituting the offense charged. It shall also state the numerical designation of the applicable statute or ordinance. There is no such equivalent language contained in the Traffic Rules. In Parma v. Block (8 th Dist. Cuyahoga Cty.), 2010-Ohio-2341, the Eighth District Court of Appeals clarified that Crim. R. 3 does not apply to cases covered by the Ohio Uniform Traffic Rules. Therefore, a ticket charging the defendant with reckless operation on street or highway with the number of the ordinance violated is sufficient. The ticket does not need to also include the acts constituting the reckless operation. SPEEDING In Barberton v. Jenney (2010), 126 Ohio St. 3d 5, 2010-Ohio-2420, 929 N.E. 2d 1047, cert. denied, S.Ct., the Ohio Supreme Court held that an officer s unaided visual estimate of a vehicle s speed is sufficient to support a conviction for speeding if the officer is: (1) trained; (2) certified by OPATA or similar organization training law-enforcement; and (3) experienced in visually estimating vehicle speed. There, the officer clocked the defendant at approximately 83 mph in a 60 mph zone but cited the defendant for only 79 mph so that the defendant could pay the citation by waiver. The officer was unable to produce a copy of his radar training certification, although the defense had requested it. The trial court amended the citation to 70 mph and, relying on the officer s visual estimation, found the defendant guilty of excessive speed. In a case that caused public outcry, the Ohio Supreme Court held that a properly trained officer s visual estimate of defendant s speed, even absent technical corroboration by radar, was sufficient probable cause to not only stop the defendant but also to support a conviction for speeding. Case Law Update 4.1

105 Columbus v. Bell (10 th Dist. Franklin Cty.), 2010-Ohio-2908, upheld the trial court s taking judicial notice of the accuracy of the Marksman LTI laser device used to clock speed. The trial court stated that it had previously declared the device to be acceptable and proper for use and apprehension of speeders. Citing Cincinnati v. Levine (1 st Dist. Hamilton Cty.), 158 Ohio App. 3d 657, 2004-Ohio-5992, 821 N.E.2d 613, the appellate court held that the accuracy of a speed measuring device may be established such that judicial notice can be taken in future cases by: (1) a reported municipal court decision from that jurisdiction; (2) a reported or unreported municipal court decision from that jurisdiction; or (3) the previous consideration of expert testimony about a specific device where the trial court notes it on the record. The court further stated that the fact that a court in one jurisdiction has taken judicial notice of a device s accuracy cannot serve as a basis for another court to take judicial notice. The defendant argued that the court erred in taking judicial notice without first conducting a hearing. Under Evid. R. 201(E), a party is entitled to a hearing upon timely request. The appellate court agreed that the defendant was entitled to a hearing but found the failure to have one did not warrant reversal of his conviction. The appellate court held that nothing in the record indicated that the device used was different from other devices bearing the same designation of LTI Moreover, even if the defendant had been able to show at a hearing that the device was a different model from other similar devices, the distinction would have been irrelevant. The court relied upon the decision in State v. Weist (1 st Dist. Hamilton Cty.), 2008-Ohio- 1433, which said that the trial court did not abuse its discretion in limiting cross-examination about different models of the LTI device, as the scientific principle underlying the device s reliability rather than the reliability of a specific model is what renders judicial notice proper. Columbus v. Kambi, 159 Ohio Misc. 2d 14, 2010-Ohio-4260 (Franklin Cty. Mun. Ct.) Judge Ann Taylor found laser speed detector could be used if all conditions for calibration and operation were applied. Opinion includes descriptive basis for recognition of speed devices. NOTICE OF LICENSE SUSPENSION State v. Walker (5 th Dist. Stark Cty.), 2010-Ohio-3043, reversed the defendant s conviction for driving under a child support suspension. A supervisor of a BMV reinstatement office testified that notification of the suspension had been mailed on November 19, 2010, three days after the defendant s arrest for DUS on November 16, A CSEA supervisor testified that a default notice was mailed to the defendant on August 15, 2006, indicating that he was in default and that the agency could take enforcement actions, including initiating proceedings to suspend the obligor s driver s license. Also, CSEA later sent several last chance letters to the defendant that the next action would be a suspension or block. The defendant testified that he did not know of the suspension until he received the BMV letter. The appellate court held that it would be fundamentally unfair to convict a person for DUS when he or she has not been given notice that his or her license has been suspended and that notice of a suspension is an inferred 4.2 Traffic Law Update

106 element of driving under suspension. Citing State v. Gilbo (2d Dist. Montgomery Cty. 1994), 96 Ohio App. 3d 332, 228, 645 N.E.2d 69, The court said that under Ohio Admin. Code 4501: (A), the registrar is to given written notice of any suspension by regular mail sent to the person s last known address. Under Ohio Admin. Code 4501: (E), notice is complete upon its deposit with the U.S. Postal Service. THE ADMINISTRATIVE LICENSE SUSPENSION APPEAL In Eastlake v. Komes (11 th Dist. Lake Cty.), 2010-Ohio-2411, the defendant successfully appealed her administrative license suspension to the trial court. After she was found not guilty at her OVI jury trial, the City of Eastlake appealed the trial court s decision granting the ALS appeal. The court of appeals found that the evidence was sufficient to demonstrate that the officer had not complied with the notification requirements associated with the breath test as he had read the 2006 version of the BMV 2255 form to the defendant rather than the 2008 version. In State v. Allen (3d Dist. Seneca Cty.), 2010-Ohio-1257, appeal not allowed, 126 Ohio St. 3d 1546, 2010-Ohio-3855, 932 N.E.2d 340, the officer gave the defendant an unsworn copy of the BMV Form 2255 and failed to notarize it before submitting it to the registrar and court. The defendant contended that submission of a sworn copy of the form was a mandatory prerequisite for the imposition of an ALS and that the officer s failure to comply rendered the suspension invalid. The court disagreed, stating that the suspension is effective immediately upon a failing result on the test. It stated that receipt of the sworn report merely operates as a record-keeping function. Upon receiving the sworn report, the registrar makes a record of the suspension already effectuated at the time of arrest. The court stated that the effect of a report being unsworn only strips it of the benefit of serving as prima facie proof, which means that some other evidence needs to be admitted to support the ALS. In that case, the officer testified regarding the matters covered by the report, which was sufficient to support the suspension on appeal. In State v. Twedell (2d Dist. Clark Cty.), 2010-Ohio-4927, the defendant argued that the trial court erred in denying his administrative appeal. He argued that the state must present a prima facie case that the arresting officer complied with the statutory procedures in Ohio Rev. Code for imposing an ALS before the burden shifts to the defendant to show a basis for appeal under Ohio Rev. Code (C). He said the state failed to meet its burden where, inter alia, the report was not notarized or signed by the Deputy Clerk of Courts and or timely sent to the court and BMV. The appellate court held that although Ohio Rev. Code provides that a sworn report is prima facie evidence of the information contained in the report, it does not say that that is the only means of establishing such evidence. It further agreed with the trial court s reasoning that the trooper s sworn testimony at the hearing was a permissible alternative to the filing of a sworn Form At that point, the burden shifted to the defendant to show he had grounds for appeal under Ohio Rev. Code (C), which Case Law Update 4.3

107 he did not do. The court reiterated that the scope of the appeal is limited to determining whether one or more of the conditions set forth in Ohio Rev. Code (C) have not been met. Westlake v. Gerber, 2011-Ohio-114 (8 th Dist. Jan. 13, 2011) Denial of ALS appeal after OVI arrest reversed. Trial court granted motion to suppress, finding officer did not have reasonable suspicion to pull him over. A lawful arrest must take place before refusal to submit to a chemical test triggers a license suspension. Trial court found that the stop of the defendant s vehicle was improper; therefore, the denial of ALS appeal was improper. ADMINISTRATIVE LICENSE SUSPENSION AND REQUIREMENT OF AN ARREST In State v. Whitt (5 th Dist. Licking Cty.), 2010-Ohio-3761, the defendant was involved in a serious one-vehicle motorcycle accident. A trooper responded to the scene after the defendant was taken to the hospital. At the hospital, the defendant was read the Form 2255 implied consent form and cited for OVI. The defendant submitted to a blood test upon being advised that his license would be suspended for one year if he refused. The trial court overruled the defendant s motion to suppress the positive test result. The appellate court reversed based upon the trial court s finding that the defendant was not under arrest at the time he consented to the test. Ohio Rev. Code involving implied consent expressly requires an arrest prior to the seizure of a bodily substance including a blood draw and implied consent based upon a Form ADMINISTRATIVE LICENSE SUSPENSION TERMINATION State v. Moore (12 th Dist. Greene Cty.), 2010-Ohio-1612, held that trial court s refusal to terminate defendant s administrative license refusal suspension after he entered plea of guilty to OVI was error, as it placed defendant in double jeopardy. State v. Lewis, 2010-Ohio-2872 (1 st Dist. June 25, 2010) Trial court erred in terminating ALS refusal after the defendant was found not guilty of OVI. OPERATION State v. Cornett (3d Dist. Seneca Cty.), 2009-Ohio-3531, held that although there was no direct evidence that the defendant was the operator of the ATV in an accident that led to his arrest for OVI, there was sufficient circumstantial evidence from which the trial court could conclude he was the operator: (1) a firefighter and paramedic testified that they did not observe anyone else at the crash site besides emergency personnel; (2) the defendant was laying in front of the ATV; and (3) there was debris from broken boxes and other objects that would have likely precluded another individual from riding on the vehicle. 4.4 Traffic Law Update

108 Columbus v. Freeman (10 th Dist. Franklin Cty.), 181 Ohio App. 3d 320, 2009-Ohio-1046, 910 N.E.2d 1026, appeal not allowed, 122 Ohio St. 3d 1480, 2009-Ohio-3625, 910 N.E.2d 478, held that the term operate in Ohio Rev. Code (HHH) is not limited to drivers and can encompass a person in the vehicle whose conduct causes movement of the vehicle by grabbing the steering wheel. MOTIONS TO SUPPRESS TIMELINESS In State v. Bower, (5 th Dist. Licking Cty.) 2010-Ohio-4420, the appellate court held that the trial court did not err in overruling the defendant s motion for leave to file a motion to suppress 62 days after his arraignment, rather than within 35 days, as required by Crim. R. 12(D). The asserted reason for delay was that the defendant was unable to meet with his attorney to discuss the facts of the case, as he had to travel out-of-state for work and his attorney was on vacation. The court held that the trial court did not abuse its discretion because discovery had been provided in a timely manner and the defendant was aware of the facts and circumstances of the case within the allotted time period. State v. Jones, 2010-Ohio-2777 (8 th Dist.) June 17, 2010 On a felony aggravated vehicular assault with OVI, the court erred by denying appellant s motion to suppress as being filed untimely. Even if it was untimely, the interests of justice require a hearing. MOTIONS TO SUPPRESS STATE APPEAL State v. Agee (6 th Dist. Erie Cty.), 2010-Ohio-1367, dismissed the state s appeal of the grant of the defendant s motion to suppress, as the appeal failed to include the prosecutor s certification under Crim. R. 12(K) that: (1) the appeal is not taken for purposes of delay; and (2) the ruling on the motion(s) had rendered the state s proof with respect to the pending charge so weak in is entirety that any reasonable possibility of effective prosecution has been destroyed. The court held that it lacked jurisdiction to hear the appeal because the Rule provides that the appeal shall not be allowed unless the notice of appeal and certification are filed within seven days after the date of the entry of judgment granting the motion Willmington v. Taylor, 2010-Ohio-3255 (12 th Dist. July 12, 2010) Granting of motion to suppress in OVI case reversed. Officer observed defendant driving left of center, smelled a moderate to strong odor, defendant had bloodshot and glassy eyes and slow speech. Even absent FSTs, this evidence was enough to establish probable cause for arrest for OVI. (Defendant refused to do FSTs.) THE STOP The fog line debate has continued even in the wake of State v. Mays, 119 Ohio St. 3d 406, 2008-Ohio-4539, 894 N.E.2d 1204 (holding that a traffic stop is constitutionally valid when an officer observes a motorist drift over the lane Case Law Update 4.5

109 markings in violation of Ohio Rev. Code even without further evidence of erratic or unsafe driving). In State v. Hernandez (10 th Dist. Franklin Cty.), 2010-Ohio-2066, the Tenth District Court of Appeals held that the State had the burden to prove not only that defendant crossed over the line but that, under the particular circumstances, there was no basis to justify crossing over the line. Merely proving that the driver went over the line was not sufficient since such drivers often legally do this in connection with lane changes or to avoid obstructions. It was not, as argued by the State, the defendant s responsibility to prove by way of an affirmative defense that it was impracticable for defendant to stay in her lane. See Ohio Rev. Code (A)(1). But the court stated that its decision was in conflict with the Second District Court of Appeals case of State v. Rochowiak (2d Dist. Miami Cty.), 2009-Ohio-2550, which stated that the burden was on the defendant to prove as an affirmative defense that it was impracticable to stay in the lane. The conflict was certified to the Ohio Supreme Court. State v. Lopez (8 th Dist. Cuyahoga Cty.), 2010-Ohio-2462, held there was no reasonable suspicion to stop defendant displaying temporary tag, which, except for the angle of his rear window or the glare of the lights, was entirely readable from left to right. State v. Cooper (2d Dist. Montgomery Cty.), 2010-Ohio-1120, appeal not allowed, 126 Ohio St. 3d 1515, 2010-Ohio-3331, 930 N.E.2d 332, held that the trial court did not err in sustaining defendant s motion to suppress where the mere presence of a barely visible hairline crack in the windshield of defendant s car failed to create a reasonable suspicion for the state highway patrol trooper to initiate traffic stop of defendant. The trooper did not testify that she felt that the crack obscured the defendant s vision. Photographs of the crack showed that it was negligible, and that the placement of the crack was clearly such as to not impair the vision of the driver. Also, State v. Kendall (5 th Dist. Morrow Cty.), 2010-Ohio-227, held that a windshield crack must render the operation of a vehicle unsafe in violation of applicable unsafe vehicle statutes or ordinances in order to render the stop valid. The officer s observation of the crack is insufficient absent testimony supporting the proposition that the crack obscures vision and makes driving unsafe. State v. James (11 th Dist. Portage Cty.), 2010-Ohio-4556, held in a 2-1 opinion that officers had no reasonable suspicion of criminal activity to support a stop of the defendant s vehicle where the defendant unsuccessfully during the early morning hours tried to pull into her friend s gated community first through a side entrance open only to residents and then tried to enter through the main entrance. Citing State v. Freeman (1980), 64 Ohio St. 2d 291, 295, 414 N.E.2d 1044, the court said that several factors are relevant in determining if there is reasonable suspicion to initiate a traffic stop, including: (1) whether the location was in a high crime area; (2) whether the officer was aware of recent criminal activity in the area; (3) the time of the stop; (4) whether the defendant s conduct was suspicious; and (5) the officer s 4.6 Traffic Law Update

110 training and experience. Here the officer did not give any explanation for his suspicions and at best was operating on the hunch that the defendant was engaging in criminal activity based on the sole observation of her two failed attempts to enter through the gates. In State v. Hatfield (Morrow Cty. Mun. Ct.), 158 Ohio Misc. 2d 51, 2010-Ohio- 4003, 933 N.E.2d 1182, the defendant was cited for left of center and OVI. A trooper stopped the defendant after observing him driving down the center of a township road although there was no other erratic driving or traffic violations. The defendant told the trooper that he always drove down the center of county roads to avoid potholes and deer. The road was a 19-footwide blacktop surface with no centerlines or fog lines. At the time of the stop, it was dark and wet with snow on ice on both sides of the roadway and no other traffic. The court noted that Ohio Rev. Code (A) requires vehicles to be driving on the right hand side upon all roadways of sufficient width. Referring to the Ohio Department of Transportation Roadway Design Manual, the court concluded that the roadway was not of sufficient width to require the defendant to operate safely on the right side of the road and therefore concluded that the trooper did not have reasonable or articulable suspicion that a traffic violation had been committed. (Opinion authored by Judge Lee McClelland.) State v. Hatfield, 2011-Ohio-597 (5 th Dist. Feb. 2, 2011) An appellant review of the miscellaneous case noted as 2010-Ohio-4003, which granted a motion to suppress, was reversed as to reasonable suspicion to stop on unmarked road. The court took judicial notice of an ODOT Manual and found the road was too narrow in that the court overstepped its bounds. The issue was not whether appellee violated the local traffic ordinances but whether the officer had sufficient reasonable suspicion to stop the vehicle and probable cause to arrest. State v. Jones, 187, Ohio App. 3d 478, 2010-Ohio-1600 (6 th Dist. Apr. 9, 2010) Officer had probable cause to make traffic stop even though stop was invalid because officer: (1) did not have authority to stop defendant outside of his jurisdiction; (2) did have reasonable suspicion that defendant had violated traffic statute; and (3) did not impermissibly prolong length of detention, and marijuana odor gave rise to independent suspicion of criminal activity for further detention. State v. Jones, 188 Ohio App. 3d 628, 2010-Ohio-2854 (10 th Dist. June 22, 2010) Any initial consensual encounter escalated into an investigatory detention and seizure when officers asked for driver s license to run warrant check. Court of appeals affirmed, granting of motion to suppress on CCW charge. State v. Hatfield, 158 Ohio Misc. 2d 51, 2010-Ohio-4003 (Morrow Cty. Mun. Ct. June 16, 2010) Motorist driving down center of narrow country road that has no center lines. Officer had no reasonable and articulable suspicion that defendant was committing a crime. Motion to suppress granted. Case Law Update 4.7

111 State v. Dozier, 2010-Ohio-2918 (2d Dist. June 25, 2010) the placement of a nonjailable traffic offender in a police cruiser as a matter of routine practice or for the convenience of the officer does not justify a pat-down of the offender. State v. Townsley, 2010-Ohio-3350 (5 th Dist. July 15, 2010) Denial of motion to suppress affirmed when the police officer called in OVI suspicions of customer at his yard sale. State v. James, 2010-Ohio-4556 (11 th Dist. Sept. 24, 2010) No reasonable suspicion or traffic violation. Officer saw defendant trying to enter friend s gated community through the exit gate. Appellant then tried to do exit/entrance gate. When neither would open, appellant drove away and was stopped. State v. Baughman, 2011-Ohio-162 (12 th Dist. Jan. 18, 2011) Suppression of OVI evidence was unwarranted where a police officer reasonably relied upon what he believed to be an identified citizen informant tip, even though it turned out informant lied about his identity. (Ex-husband called with fake name but later identified himself.) State v. Minear, 2010-Ohio-6577 (11 th Dist. Jan. 3, 2011) The Granting of motion to suppress reversed. Defendant rear-ended vehicle and left scene but gave the other driver his license plate number. Officer went to defendant s apartment and saw damage to the vehicle. While knocking on windows, officer saw male body lying motionless face down through window. Exigent circumstances existed to break down door with EMS to determine status of individual. State v. Dunn, 2010-Ohio-6340 (2d Dist. Dec. 23, 2010) Granting of motion to suppress reversed. Stop based solely on dispatcher s report. State did not provide any factual basis that the police dispatcher had a reasonable basis for issuing the bulletin that led to the stop. The State must prove that the facts precipitating the dispatch justified a reasonable suspicion of criminal activity. State v. Trevarthen, 2011-Ohio-1013 (11 th Dist. Mar. 7, 2011) Denying of MTS affirmed. Woman went to pickup another driver arrested for OVI and her sister. He stopped behind trooper car, which ultimately led to tests and arrest. Although no stop by the trooper, as if a consensual encounter, which led the officer to investigate further when placed on suspicion. EXTRATERRITORIAL STOP Similar to State v. Jones, 121 Ohio St. 3d 103, 2009-Ohio-316, 902 N.E.2d 464, in State v. Caldwell (6 th Dist. Wood Cty.), 2010-Ohio-1700, the court held, inter alia, that a stop outside of a township officer s jurisdiction on an interstate highway did not violate the Fourth Amendment even if the stop was contrary to Ohio Rev. Code , which prohibits township officers from exercising arrest jurisdiction on state highways. Such a statutory violation does not rise to the level of a constitutional violation. 4.8 Traffic Law Update

112 ORDERING MOTORIST OUT OF VEHICLE State v. Wojewodka (11 th Dist. Portage Cty.), 2010-Ohio-973, held that an officer has the authority to order a driver out of a vehicle that is otherwise lawfully stopped, even in the absence of reasonable suspicion of criminal activities. This conduct does not violate the Fourth Amendment proscription against unreasonable searches and seizures. Id., quoting State v. Lett (11 th Dist. Trumbull Cty.), 2009-Ohio SEARCH INCIDENT TO STOP/ARREST State v. Williamson (5 th Dist. Stark Cty.), 2010-Ohio-2331, the court approved a search even though the defendant, a passenger who admitted having a gun under his seat, was under arrest and could not access the vehicle. The court found that the driver was within reaching distance of the vehicle, thereby justifying the search. State v. Grubb (3d Dist. Defiance Cty.), 186 Ohio App. 3d 744, 2010-Ohio- 1265, 930 N.E.2d 380, held in a 2-1 decision on the basis of Gant that the search of a passenger s purse and passenger compartment of the driver s vehicle was not justified by search incident to arrest exception to the warrant requirement. The court noted that even though the vehicle had two occupants, unlike the single occupant involved in Gant, there was no testimony about it being a high-crime area, about there being furtive gestures, or that the pat-down search of the driver yielded a weapon. Also, at the time of the search, the driver was already handcuffed and seated in the back of the police cruiser. Finally, there was no testimony to support the conclusion that the defendant passenger was armed or dangerous or had done anything illegal. State v. Mays, 2010-Ohio-3289 (10 th Dist. July 13, 2010) Trial court did not err in granting a motion to suppress on warrantless search with no exception. (Officer asked, Can we search? Defendant: Nothing there. Officer: Is that a yes? Defendant: If that s what you guys want to do. ) FIELD SOBRIETY TESTS State v. Reed (1 st Dist. Montgomery Cty.), 2010-Ohio-299, appeal not allowed, 125 Ohio St. 3d 1448, 2010-Ohio-2510, 927 N.E.2d 1128, found that there was clear and convincing evidence that FSTs were conducted in substantial compliance with NHTSA standards. Citing State v. Knox (Greene Cty. Ct. App.), 2006-Ohio-3039, the court held that the state is not required to actually introduce the NHTSA MANUAL or testimony concerning the standards, where the record demonstrates, if only by inference, that the court took judicial notice of the NHTSA standards. Citing State v. Murray (2d Dist. Cty. Ct. Greene App.), 2002-Ohio-4809, the court said the State is not required to present more particular evidence of compliance unless a defendant sufficiently challenges the evidence. Here the prosecutor inquired whether and how the officer administered the tests in accordance with his Case Law Update 4.9

113 training. The court noted, however, that a witness s response to such inquiry may be insufficient where there is no testimony about a particular standard, and the manual is not admitted in evidence. We therefore urge prosecutors to first establish from the testifying officer what a particular NHTSA standard requires before inquiring what the officer did in administering a particular test and whether a defendant satisfied the applicable NHTSA standard. In Columbus v. Bickis (10 th Dist. Franklin Cty.), 2010-Ohio-3208, the appellate court followed a number of prior decisions (e.g., State v. Schmitt, 101 Ohio St. 3d 79, 2009-Ohio-1398, 801 N.E.2d 446), holding that even though an HGN test was not administered in substantial compliance with standardized testing procedures, and its results may not be admitted in evidence at trial, the officer s lay observations of the defendant during the test are admissible at trial. The results of the HGN test include the officer s opinion as to whether the person passed or failed the test, the number of clues demonstrated, and the statistical likelihood that the person was under the influence of alcohol and a BAC over the legal limit. Conversely, observations, such as whether the defendant was unable to focus steadily on the stimulus or swayed during the test, are the kind of thing the officer may still testify regarding. Also, observations that the defendant could not hold himself steady, lost his balance, stumbled, or swaggered when walking, stepped off the line, could not follow simple directions, or used his arms for balance, are all admissible as lay evidence of intoxication. Finally, the audio/video recording made during the test and depicting the defendant s performance, conduct, and demeanor is also admissible at trial. The court rejected the defendant s argument that his performance on the walk-and-turn and refusal to continue with field sobriety testing and to submit to the BAC were inadmissible on the basis that the officer s conduct in stopping and seizing him for traffic violations constituted a seizure within the meaning of the Fourth Amendment, which made the testing tantamount to a search for physical evidence and requiring his voluntary consent. The court also rejected the defendant s argument that his partial performance on the walk-and-turn was not voluntary, as it was induced by the officer s threat to arrest him if he refused to continue with the testing. Citing State v. Perez, 124 Ohio St. 3d 122, 2009-Ohio-6179, 920 N.E.2d 104, the court held that advising a person that he will be arrested if he refuses to perform field sobriety tests does not render his consent involuntary if the officer has probable cause to arrest the person for OVI. Rather, the officer s statement that he would arrest defendant for OVI was a truthful statement of what the officer had a legal right to do. State v. Verity (5 th Dist. Stark Cty.), 2010-Ohio-1151, held that FSTs should have been suppressed where manual not admitted into evidence and trial court denied defendant s attempt to admit unauthenticated copy and refused to take judicial notice of it. State v. Clark (12 th Dist. Brown Cty.), 2010-Ohio-4568, found that field sobriety tests were conducted in substantial compliance with NHTSA requirements. The court noted that the officer is not required to take notes 4.10 Traffic Law Update

114 while the testing is taking place. The manual recommends note taking to assist the officer in testifying a trial, but this is not a required element of the testing. The court further held that the HGN was done in substantial compliance where the officer admitted he held the stimulus 18 inches from the suspect rather than the recommended 12 to 15 inches, performed the smooth pursuit three rather than two times, and took less time in conducting portions of the test that is provided in the manual. Also, the defendant was not prejudiced by the officer s failure to independently time the one-leg stand because the clues were observed by the time the defendant had counted to 20. Finally, the administration of the walk and turn was not affected by the officer s failure to instruct the defendant to place his left foot on the line with the right foot ahead and also to start walking with any foot he preferred. State v. Tanner, 160 Ohio Misc. 2d 54, 2010-Ohio-5231 (Athens Cty. Mun. Ct. Aug. 11, 2010) Motion to suppress on OVI denied. Court held officer had authority to approach defendant after accident and authority to detain defendant. Defendant s detention in patrol car for 20 minutes was not arrest and reasonable suspicion existed for investigatory detention. HGN test was also admissible although defendant was facing squad car strobe lights while administered. Strobe lights not listed in NHTSA MANUAL as a concern. Cincinnati v. Bryant, 2010-Ohio-4474 (1 st Dist. Sept. 24, 2010) Police officer had probable cause to arrest the defendant for OVI even before FSTs were administered when defendant backed out of a one way street, had a moderate odor of alcohol about his person outside the vehicle, slightly slurred speech, had watery glazed eyes, exhibited confusion and clumsiness while locating his insurance card and exiting from his vehicle, and admitted to consumption of alcohol. State v. Kissinger, 2010-Ohio-2840 (2d Dist. June 18, 2010) Trial court did not err in overruling results of breath test and denying motion to suppress. In car HGN not done per NHTSA standards was not used to establish probable cause to corroborate reasonable suspicion for additional test. Trial court seemed to have given the in-car HGN little if any weight. As to reasonable suspicion, trial court did not err in overruling objection to police officer s test concerning his written report. Officer substantially complied with pretesting procedure. State v. Bish, 2010-Ohio-6604 (7 th Dist. Dec. 29, 2010) Granting of motion to suppress affirmed on FSTs and reversed as to breathalyzer. No other credible, reliable evidence of field sobriety testing standards was admitted, so trial court was correct in suppressing results of FSTs. However, breathalyzer suppression was proper, as the state did not produce evidence of the applicable Admin. Code section, and even absent the results of the FSTs, there was probable cause to arrest the defendant and submit to test. Also, the court included discussion as to requirement of NHTSA MANUAL in evidence as being required. Case Law Update 4.11

115 CHEMICAL TESTS In Euclid v. Jackson (8 th Dist. Cuyahoga Cty.), 2010-Ohio-2100, the defendant argued that the City did not comply with Ohio Admin. Code , arguing that the State must prove that the bottle of solution used in checking the machine came from a batch solution approved by the ODH. There, the person responsible for testing the machine stated the testing solution was received in a box with two bottles of solution, and an ODH certificate verifying it met department requirements. The certificate verified the batch number but did not list the bottle numbers for the batch. Sometimes the ODH provides an extra sticker that the police affix to the certificate, but it was not provided for this box. The police retained the certificate but disposed of the expired bottles of solution. They also retained a log of the date the machine was tested and bottle number used to calibrate the machine and batch number listed on the sticker. The appellate court held that this was substantial compliance and that the police were not required to retain the expired bottles, just the results from testing equipment for no less than three years. State v. Burtch (10 th Dist. Franklin Cty.), 2010-Ohio-259, reversed the grant of the defendant s motion to suppress the results of her BAC test taken by a state trooper at the Grandview Heights Police Department. The court stated that then Ohio Admin. Code (A)(1) did not clearly mandate the Grandview Heights Police Department to test possible RFI from the Ohio State Patrol using that department s equipment. The trial court impermissibly placed the burden on the state to show the radio frequencies transmitted by OSHP radios were either the same as GHPD radio frequencies used to check for RFI or that they did not affect the defendant s breath test. In State v. Baker (12 th Dist. Warren Cty.), 2010-Ohio-1289, the defendant served the state trooper with a subpoena duces tecum to appear at the suppression hearing with the BAC machine itself and certain written materials pertaining to it. The State filed a motion to quash arguing it would be unreasonable to bring the machine to court as its absence would result in other suspects not being tested and transport of the machine might cause it damage. The appellate court reversed the trial court s grant of the motion to suppress because it failed to conduct a separate evidentiary hearing on the motion and solicit evidence from the defendant as to whether the subpoena was unreasonable or oppressive. State v. Whitt, 2010-Ohio-3761 (5 th Dist. Aug. 11, 2010) Trial court erred by denying motion to suppress on OVI. In a one-vehicle accident, while in hospital appellant consented to a blood draw but was coerced into the blood draw when the trooper read defendant BMV Form 2255; however, the provisions are not applicable unless appellant was validly arrested. Trial court found that appellant was not under arrest at the hospital Traffic Law Update

116 State v. Groves, 2010-Ohio-5088 (5 th Dist. Oct. 15, 2010) In another hospital blood draw case, the court of appeals found that the defendant was under constructive arrest even though officer never took custody of defendant, as he was undergoing medical treatment, prior to his life flight to another medical facility. The officer had intended to arrest the appellant had the medical issue not arisen, and appellant was told he was under arrest. State v. Collins, 2010-Ohio-5333 (5 th Dist. Oct. 21, 2010) The defendant was not denied an opportunity under the confrontation clause to cross-examine officer where officer who conducted posttest calibration was not called as a witness at the suppression hearing. State v. Palmieri, 2010-Ohio-5667 (12 th Dist. Nov. 22, 2010) Trial court did not err in denying motion to suppress on blood test result when there was imminent danger that evidence would be lost and destroyed if the search was not conducted immediately. State v. Slates, 2011-Ohio-295 (9 th Dist. Jan. 26, 2011) Gurney and go statute found to be constitutional in 2-1 decision. Blood test taken three hours and one minute after arrest was found to be substantial compliance. One minute after three hour period was de minimis. (Belfance dissent.) TWENTY-MINUTE WAITING PERIOD State v. Saini (9 th Dist. Medina Cty.), 2010-Ohio-2813, upheld the trial court s grant of motion to suppress test results where video of stop showed the trooper away from his cruiser and the defendant cutting the actual observation time to 18.5 consecutive minutes, which was unacceptable. In State v. Hummel (6 th Dist. Wood Cty.), 2010-Ohio-1482, the trial court found testimony of testing officer that he had continuously observed for the requisite period to be more persuasive than that of the arresting officer who later came to believe that he escorted defendant to the water fountain during that period. In State v. Lester (12 th Dist. Warren Cty.), 2010-Ohio-41, the defendant sought to suppress the results of his breathalyzer test saying the State failed to prove that the test was administered within the three-hour time limit. A state trooper testified that he was dispatched to the scene of a single-car accident and arrived within 20 minutes. The defendant submitted to a chemical test within 1½ hours of the original dispatch. The appellate court held it must accept the trial court s finding that the test was administered within the statutory period, as long as it was supported by competent, credible evidence. Although dispatch did not provide the exact time of the accident, the trooper testified that he arrived shortly after receiving the call and observed fresh marks going off the road. The defendant was still seated in the driver s seat, and it was warm inside the vehicle, although it was not running and was cold outside. Another officer also testified that it seemed that the accident had just occurred. Case Law Update 4.13

117 BLOOD DRAW BASED ON AFFIDAVIT In State v. Ridenour (4 th Dist. Meigs Cty.), 2010-Ohio-3373, a Meigs County juvenile/probate judge issued a search warrant to draw the defendant s blood following a fatal car accident. The defendant argued that the warrant was invalid, as the draw actually took place in Galia County, which was outside of the judge s jurisdiction. The appellate court agreed that this was a violation of Crim. R. 41(A), which provides that a search warrant may be issued by a judge to search and seize property located within the court s territorial jurisdiction. However, the court held that the warrant was supported by probable cause and issued by a neutral and detached magistrate and that the violation was merely technical in nature and did not warrant suppression. This decision is distinguishable from State v. Jacob (2d Dist. Montgomery Cty.), 185 Ohio App. 3d Ohio-7048, 924 N.E.2d 410, involving a theft case where an Ohio municipal judge issued a warrant without probable cause to search the defendant s home and vehicles located outside of the court s jurisdiction in another state. This was a violation of the defendant s constitutional rights warranting suppression. EVIDENTIARY ISSUES Garfield Heights v. Winbush (8 th Dist. Cuyahoga Cty.), 187 Ohio App. 3d 302, 2010-Ohio-1658, involved a jury trial for fleeing and eluding, failure to have insurance, disregard of public safety, and speed. The trial court permitted a police officer to testify regarding oral and written statements made by the vehicle s owner. The officer testified that the offender sped away during a traffic stop. The officer met with the vehicle owner, who said she had loaned the car to someone named Fred. The next day, she came to the police station and said Fred had called her and to apologize for the chase and to tell her where to find the car. An officer did a reverse search to determine the car s location and found two persons, one of which fit the description of the offender. The vehicle owner was shown a photo array and picked out the defendant as Fred, but she later indicated she would not testify because she was afraid of reprisals for identifying the defendant. The appellate court reversed the defendant s conviction, finding that admission of the statements violated the defendant s rights under the Confrontation Clause of the U.S. and Ohio Constitutions. The court noted the U.S. Supreme Court s decision in Crawford v. Washington (2004), 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 77, which held that in the case of testimonial evidence, there must be: (1) unavailability of the witness; and (2) a prior opportunity for confrontation. Here, the statements of the vehicle owner were clearly testimonial, and her credibility was the pivotal issue in the case. State v. Gonzalez, 188 Ohio App. 3d 121, 2010-Ohio-982 (3d Dist. Mar. 15, 2010) Evidence was insufficient to show that criminal act occurred in county in which trial was held for purposes of establishing venue in prosecution for sexual imposition. Victim did not know address of house where the offense occurred, and no other witness was asked where the offense occurred or even identifying landmarks to discern venue. No presentation of venue results in acquittal Traffic Law Update

118 State v. Montiero, 189 Ohio App. 3d 655, 2010-Ohio-4076 (12 th Dist. Aug. 30, 2010) OVI conviction affirmed. Defendant waived his right to object to juror s competency; trial court s allowance of non-u.s. citizen to sit as juror was violation of statute rather than structural error and thus did not require reversal. (Juror stated during voir dire that he was a Canadian citizen, and no challenges were taken.) State v. Yeager, 2010-Ohio-3162 (7 th Dist. June 28, 2010) State stop sign requirement that a driver shall stop at a stop sign is mandatory, not discretionary; driver s argument that no traffic was coming fails. Columbus v. Bickis, 2010-Ohio-3208 (10 th Dist. July 8, 2010) Officer s threat to arrest defendant was not coercive because when the officer told defendant he would arrest him if defendant did not perform the field sobriety testing, the officer already had probable cause to arrest defendant for OVI. State v. King, 2010-Ohio-3254 (11 th Dist. July 9, 2010) OVI jury conviction reversed. Defendant did not have sufficient chance to cross-examine, and prosecutor committed prosecutorial misconduct prejudicial to defendant s rights. State v. Allen, 2010-Ohio-3336 (2d Dist. July 16, 2010) Statute governing temporary tags required they be displayed in plain view from the rear of the vehicle. Tag lying on deck of rear window was not visible from the rear of the vehicle, giving officers probable cause to stop the vehicle. State v. Brewer, 2010-Ohio-3441 (2d Dist. July 23, 2010) Trial counsel was not ineffective for having failed to move to suppress evidence of FSTs. Officer s trial testimony indicates that she had a reasonable and articulable suspicion of impairment based on observations before she subjected defendant to FSTs. Therefore, it is not likely that evidence would have been suppressed had counsel made a motion to suppress. State v. Hill, 2010-Ohio-5356 (8 th Dist. Nov. 4, 2010) Knowledge is a required element in a hit-skip violation. State v. Belanger, 190 Ohio App. 3d 377, 2010-Ohio-5407 (3d Dist. Nov. 8, 2010) Domestic violence conviction reversed because the court erred by failing to instruct the jury on self-defense. State v. Mitchell, 2010-Ohio-5430 (1 st Dist. Nov. 10, 2010) Marijuana conviction reversed. Evidence at trial was legally sufficient to demonstrate that the defendant had constructively possessed the marijuana that had been seized in a traffic stop. (Marijuana found in the seat pocket in front of rear seat occupied by the defendant, but his mere proximity to the marijuana, without more, did not in law establish that he had constructively possessed it.) Case Law Update 4.15

119 State v. Voorhis, 2010-Ohio-5858 (5 th Dist. Dec. 1, 2010) OVI conviction affirmed. Defendant requested to speak with counsel was told he would have a chance to do so. He refused the breath test, was held for over an hour, and was not allowed to speak with counsel. The court merely prohibited the characterization of the officer s actions as a violation to a statute. State v. Whitty, 2010-Ohio-5847 (1 st Dist. Dec. 3, 2010) Officer s observations, even without any consideration of FST s performance, provided probable cause to arrest for OVI. State v. Eaton, 2010-Ohio-6065 (3d Dist. Dec. 13, 2010) Denying of motion in limine to exclude evidence of refusal to take test is proper. Officer properly advised defendant of consequences for refusal. State v. Phoenix, 2010-Ohio-6009 (1 st Dist. Dec. 10, 2010) Trial court did not err in concluding there was no probable cause for OVI. Defendant stopped for not having vehicle lights on, admitted that he had just consumed beer and had a slight odor of alcohol, had no trouble getting out of vehicle, producing license, and passed two FSTs with no slurred speech. Two-to-one vote with dissent. State v. Lee, 2010-Ohio-6276 (12 th Dist. Dec. 20, 2010) Issue of BMV certified copy as admissibility under evidence Rule 902. State v. Kendrick, 2011-Ohio-212 (1 st Dist. Jan. 21, 2011) Hamilton County defendant was subject to Hamilton County Municipal Court jurisdiction for offenses in that county where she initially entered a plea of not guilty. Objections based on defects in the institution of prosecution must be raised prior to trial; in the absence of a pretrial objection, such issues are waived. Where a misdemeanor complaint is, on its face, valid under Cramer 3, the jurisdiction of the municipal court is properly invoked. State v. Hardy, 2011-Ohio-241 (2d Dist. Jan. 21, 2011) Denying of motion to suppress affirmed. Police officer had reasonable suspicion that defendant committed turn signal violation when she failed to signal for 100 feet prior to turning at T-intersection. Pre-Miranda statements were voluntarily made. Bedford v. Clarke, 2011-Ohio-941 (8 th Dist. Mar. 3, 2011) Motion to suppress reversed and remanded. In its ruling, the court stated for good cause not found, Motion not well taken, and the same is denied. Crim R. 12(F) requires the court to state its essential findings on the record when issues of fact are involved in determining a motion. The court denied the motion three days after it was filed and before the City filed a response. Richfield v. Liscoe, 2011-Ohio-1054 (9 th Dist. Mar. 9, 2011) Officer dispatched to defendant s home after RTA bus driver advised of swerving vehicle and gave make and plate. Car was in the driveway with the door open, and father gave consent for officer to enter house to engage defendant. Officer also has had prior history with family and defendant as to her alcohol issues. Granting of motion to suppress reversed. Several of the court s factual findings were inaccurate Traffic Law Update

120 REQUEST FOR APPOINTMENT OF EXPERT PLEA In State v. Nichols (5 th Dist. Fairfield Cty.), 2010-Ohio-2242, the defendant contended that the trial court erred in not providing him with an expert witness at state expense. He said that at the time of the stop he may have been experiencing flashbacks related to posttraumatic stress disorder and that the fact he was disoriented when speaking to the officers was the basis for his request. In rejecting this argument, the court held that decisions as to the appointment of experts are to be made in the sound discretion of the court based upon: (1) the value of the expert assistance to the defendant s proper representation; and (2) the availability of alternative devices that would fulfill the same functions. The court said that the defendant must provide sufficient facts to establish a particularized need for the expert assistance, as well as more than a mere possibility of assistance to receive an expert witness at the state s expense. The trial court acted within its discretion in denying the request. In State v. Lindenmayer (5 th Dist. Licking Cty.), 2009-Ohio-3982, the defendant appealed the trial court s judgment based on her plea of no contest to one count of failure to comply and one of willful or wanton disregard of safety. The defendant argued that the court erred in accepting her plea without informing her that she was subject to a mandatory license suspension. The appellate court stated that there is no requirement to inform the defendant of the maximum penalties under Crim. R. 11(E). According to State v. Jones, 116 Ohio St. 3d 211, 2007-Ohio-6093, 877 N.E.2d 677, on remand to 2008-Ohio-6974, appeal not allowed, 121 Ohio St. 3d 1454, 2009-Ohio-1820, 904 N.E.2d 903, the trial court merely has to inform the defendant of the effect of the plea and appropriate language under Crim. R. 11(B). The defendant did not demonstrate prejudice because she did not seek to change her plea once informed of the suspension. State v. Powell, 188 Ohio App. 3d 232, 2010-Ohio-3247 Defendant was entitled to withdraw guilty plea on voyeurism charge after sentencing due to counsel s ineffective assistance with regard to sex offender registration advisement. State v. Stewart, 188 Ohio App. 3d Ohio-3657 (2d Dist. Aug. 6, 2010) Conviction for assault vacated. Defendant did not make a voluntary, knowing, and intelligent waiver of his right to counsel. Trial court failed to adequately discuss the possible defenses and circumstances in mitigation of the offense, and the warnings of the dangers inherent in self-representation came too late in that defendant had been representing himself in all pretrial proceedings without any dialogue with the trial court concerning the dangers and without a written waiver. Case Law Update 4.17

121 State v. Fordenwalt, 2010-Ohio-2810 (9 th Dist. June 21, 2010) No contest plea for OVI/BAC reversed. The state did not make a statement of facts before the court found the appellant guilty. The fact that evidence of blood test results were in the exhibit was not sufficient to satisfy the explanation of circumstances. Never said reading was.17 in testimony. State v. Griffith, 2010-Ohio-5556 (10 th Dist. Nov. 16, 2010) Trial court substantially complied with Traf. R. 10(D) by informing appellant of the effect of his no contest plea on a petty offense. The court s decision to deny motion to withdraw guilty plea without hearing was not abuse of discretion but because there was an error in the sentencing entry. The matter was remanded with instructions to correct the clerical error. North Royalton v. Semenchuk, 2010-Ohio-6197 (8 th Dist. Dec. 16, 2010) No contest plea in OVI conviction reversed. Trial court failed to inform defendant of the effect of a no contest plea. The language of Traf. R. 10(B)(2) was noticeably absent from the colloquy. State v. King, 2011-Ohio-29 (2d Dist. Jan. 5, 2011) Failure to advise defendant on a guilty plea that a plea is a complete admission of guilt mandates reversal, as required by Crim. R. 11(E). State v. Beamer, 2011-Ohio-639 (5 th Dist. Feb. 10, 2011) Trial court erred in accepting defendant s plea to felony theft. Instead of having a colloquy under Crim. R. 11(C)(2) the court asked if appellant had heard the court s conversation with the previous defendant. The court failed to engage in a meaningful dialogue with that defendant that would explain the pertinent constitutional rights in a manner reasonably intelligible to her. State v. Gibson, 2010-Ohio-3509 (8 th Dist. July 29, 2010) No contest plea and conviction reversed; incorrect advisement regarding the effect of no contest plea. (Interesting transcript excerpt of the felony court s Rule 11 explanation.) Parma v. Pratts, 2011-Ohio-728 (8 th Dist. Feb. 17, 2011) Convicion reversed. Trial court failed to advise defendant of the effect of a no contest plea. SENTENCING Columbus v. Aleshire (10 th Dist. Franklin Cty.), 187 Ohio App. 3d 660, 2010-Ohio-2773, 933 N.E.2d 317, appeal not allowed, 126 Ohio St. 3d 1617, 2010-Ohio-5101, 935 N.E.2d 855, vacated the sentence and remanded where the trial court sentenced the defendant for both OVI and BAC. The appellate court held that the two charges should have been merged for purposes of sentencing, and the defendant should have been sentenced on only one as elected by the prosecutor Traffic Law Update

122 In State v. Pierce (7 th Dist. Mahoning Cty.), 2010-Ohio-1297, the defendant successfully appealed his sentence for resisting arrest where the court sentenced him to 30 days and then crossed out that term and amended it to 60 days after defendant asked for credit for 28 days already served. The court cited Bordenkircher v. Hayes (1978), 434 U.S. 357, 363, 98 S. Ct. 663, 54 L. Ed. 2d 604, which said to punish a person because he has done what the law plainly allows him to do is a due process violation of the most basic sort. The court held the defendant was entitled to have credited to his sentence the number of days that he was confined prior to his conviction and sentence. State v. Thomas (5 th Dist. Delaware Cty.), 2010-Ohio-2660, upheld the defendant s OVI jail sentence although the court mistakenly believed he was a second offender where he had a prior arrest for OVI but was not sentenced until after receiving the charge at hand. The court held that the sentence was lawful and justified apart from the trial court s understanding that it was a second offense. However, the court also imposed a five-year driver s license suspension, which is not permitted for a first offense, and that part of the sentence was remanded. In State v. Monteleone (9 th Dist. Lorain Cty.), 2010-Ohio-5064, the defendant pled no contest to what appeared to be his third OVI offense within six years. Before sentencing, the defendant moved to strike his two priors on the basis that they were not valid judgments. He produced judgment entries from the cases and argued that they did not comply with the requirements of Crim. R. 32(C), setting forth the requirements for a judgment of conviction. It said that the language of Ohio Rev. Code (G) (1)(c) relates to an offender who has previously been convicted or pleaded guilty to one or more prior violations of the statute. As such, based upon the plain language of the statute, evidence of a prior plea is sufficient to enhance the offense. Id., citing State ex rel. Watkins v. Fiorenzo (1994), 71 Ohio St. 3d 259, 643 N.E.2d 521. State v. Robar (5 th Dist. Delaware Cty.), 2010-Ohio-5319, reversed and remanded for resentencing where the defendant plead no contest to OVI and the trial court suspended his license through a sentencing entry without having imposed it during the sentencing hearing. The court cited Crim. R. 43(A)(1), which provides that the defendant must be physically present at every stage of the criminal proceeding and trial, including the imposition of sentence. State v. Hohenberger, 189 Ohio App. 3d 346, 2010-Ohio-4053 (6 th Dist. Aug. 27, 2010) Defendant s waiver of speedy trial rights on aggravated vehicular assault charge based on OVI did not carry over to later charge, by indictment, of vehicular assault based on recklessness. State v. Thomas, 2010-Ohio-2660 (5 th Dist. June 10, 2010) Pending OVIs are not considered prior convictions for sentencing on other OVI offenses. State v. Hassinger, 2010-Ohio-4236 (5 th Dist. Sept. 7, 2010) DUS conviction affirmed. Trial court denied defendant s request for court appointed counsel seeing the court would not be imposing any jail sentence. Accordingly, he was not entitled to counsel. Case Law Update 4.19

123 State v. Lewis, 2010-Ohio-4288 (11 th Dist. Sept. 10, 2010) A good updated discussion of Brooke. On a 6 in 20 Felony OVI, to meet his initial burden, defendant is required to show both that he was unrepresented by an attorney and that he did not make a valid waiver of right to counsel. Defendant failed to set forth a prima facie case alleging a prior conviction was unconstitutional; thus, the burden never shifted to the State to prove its constitutionality. State v. Monteleone, 2010-Ohio-5064 (9 th Dist. Oct. 18, 2010) Denial of motion to strike prior conviction was affirmed. The presence of prior convictions would increase appellant s penalty but not the degree of the offense. Although document may not comply with Crim. R. 32(C), a prior determination of guilt is what is contemplated, not a judgment of conviction. State v. Robar, 2010-Ohio-5319 (5 th Dist. Nov. 1, 2010) Case was reversed on a technicality, as no license suspension was mandatory. Lakewood v. Ryan, 2010-Ohio-5370 (8 th Dist. Nov. 4, 2010) One cannot be placed on community control for a conviction of a minor misdemeanor. Mansfield v. Hatfield, 2010-Ohio-5567 (5 th Dist. Nov. 15, 2010) Trial court erred in sentencing a defendant on a reckless operation conviction to a domestic violence counseling program. State v. Rolf, 2010-Ohio-5699, 5700 (5 th Dist. Nov. 19, 2010) Defendant could not collaterally attack prior felony OVI when not predicated on the OVI of the instant action. State v. Caudill, 2010-Ohio-5965 (10 th Dist. Dec. 7, 2010) On a four in six felony OVI, trial court properly found that appellant had validly waived his right to counsel. The record shows that the municipal court showed appellant a video explaining his rights. He also twice stated in open court that he was waiving his right to counsel and verified that the waiver was knowingly, voluntarily, and intelligently made. State v. Mccumbers, 2010-Ohio-6129 (9 th Dist. Dec. 15, 2010) On a 6 in 20 OVI, enhancements were accepted notwithstanding failure to comply with Crim. R. 32(C). The word convicted refers only to a determination of guilty and not a judgment of conviction. Crim. R. 32(C) is not a prerequisite to proving a prior offense. In addition to judgment entries, the State produced BMV records reflecting the defendant s prior conviction. Defendant presented evidence to rebut the content of the BMV records. Bedford Heights v. Boykin, 2011-Ohio-452 (8 th Dist. Feb. 3, 2011) In a pro se representation, the court did not conduct any colloquy before allowing the defendant to engage in self-representation. She was never advised of her right to counsel and possible consequences of waiver of rights. The court failed to comply with Crim. R. 44, and the case was reversed Traffic Law Update

124 State v. Kuffer, 2011-Ohio-676 (10 th Dist. Feb. 15, 2011) Felony OVI conviction affirmed. Defendant s attempt to strike prior 1997 OVI conviction without valid waiver was denied. The record showed that the 1997 conviction contained a written waiver of counsel form signed by the defendant. In cases in which a transcript is not available court pleadings, including a signed waiver of counsel form may be sufficient to show that the court made a finding that the defendant s waiver to counsel was knowingly and voluntarily waived. State v. Lewis, 2011-Ohio-911 (4 th Dist. Feb. 25, 2011) Establishment or prior OVI convictions for felony OVI affirmed. State had evidence consisting of self-authenticating documents. Defendant failed to make a prima facie showing a prior Kentucky conviction was constitutionally infirm. SPEEDY TRIAL The defendant successfully obtained two separate dismissals on speedy trial grounds in State v. Willig (10 th Dist. Franklin Cty.), 2010-Ohio On July 8, 2008, the defendant was driving a truck and had an accident injuring a juvenile pedestrian. His initial charges in a first case stemming from the accident included OVI under Ohio Rev. Code (A)(1)(a). He was later charged in a second case with OVI under Ohio Rev. Code (A)(1)(j)(viii)(II) for driving with a prohibited amount of marijuana metabolite in his urine. On October 22, 2008, he filed a motion to dismiss the second case on the basis of a speedy trial violation. The court granted defendant s motion to dismiss on December 8, 2008, and the State did not appeal. Then, on December 18, 2008, the court dismissed the first case on the State s motion for a future indictment. On February 12, 2009, the defendant was indicted for aggravated vehicular assault, vehicular assault, and two counts of OVI. The common pleas court dismissed all but the vehicular assault charge, and the decision was affirmed in the court of appeals. The court held that, under Ohio Rev. Code (D), when an accused is discharged for lack of speedy trial, the discharge is a bar to any further criminal proceedings based on the same conduct. On appeal, the State argued that this provision was inapplicable since under double-jeopardy analysis, the new charges involved different elements. The appellate court affirmed the trial court, holding that the focus was on the conduct, which in this case was the accident, rather than on the elements of the crimes. As such, the dismissal of a defendant s original charges on speedy trial grounds barred the defendant s prosecution for offenses arising out of the same conduct giving rise to the charges. State v. Truitt, 2010-Ohio-5972 (10 th Dist. Dec. 7, 2010) Dismissal of OVI for violation of speedy trial rights reversed. Speedy trial time tolled prior to filing of a motion to suppress, due to appellant s motion for discovery and continuance. State v. Guy, 2010-Ohio-6341 (2d Dist. Dec. 23, 2010) Reversal of denial of motion to dismiss for speedy trial issue was granted. Pursuant to Crim. R. 4(D)(3), ordinary mail does not trigger statutory time. Time did not start until she was properly served or arraigned. Case Law Update 4.21

125 POSTCONVICTION RELIEF In State v. Detskas (2d Dist. Montgomery Cty.), 2010-Ohio-4392, 4392, the defendant was charged with petty theft when she absent-mindedly left the deli area of a grocery store without paying for her food items. She was charged with petty theft but pled to unauthorized use of property. She later appealed her conviction based upon the argument that she did not knowingly take the items. The appellate court held the appeal was moot since the defendant voluntarily satisfied the full sentence, which included fines and costs and suspended jail time, and there was no evidence that she would suffer a collateral disability or loss of civil rights due to her conviction. State v. Stewart, 2010-Ohio-3657 (2d Dist. Aug. 6, 2010) Although the trial court attempted to properly warn the defendant of the dangers inherent in self representation, trial court failed to adequately discuss with the defendant the possible defenses and circumstances in mitigation of the offense charged. (Pretrial was held without dialogue regarding the dangers of self-representation.) State v. Semenchuk, 2010-Ohio-4864 (4 th Dist. Sept. 30, 2010) Appeal of order violating community controlled sanctions affirmed. Even though community controlled sanction was imposed after community control had expired, the proceedings were commenced while the defendant was still on community control. MISCELLANEOUS OTHER CASES State v. Downour, 126 Ohio St. 3d 508, 2010-Ohio-4503 (Sept. 29, 2010) The State has the burden to show that the presence of an alternate juror in the room during jury deliberations has not prejudiced a defendant. State v. Landers, 188 Ohio App. 3d 786, 2010-Ohio-3709 (4 th Dist. Aug. 5, 2010) Dismissal of domestic violence charge affirmed. Trial court did not abuse its discretion in dismissing complaint after defendant and his counsel appeared at pretrial hearing and the complainant failed to appear. State v. Crowell, 189 Ohio App. 3d 468, 2010-Ohio-4917 (2d Dist. Oct. 8, 2010) Conviction for obstructing official business reversed. Defendant did not perform affirmative act that hampered or impeded law enforcement in performance of their duties; while defendant closed door on police officers following their command that he exit his home, officers observed defendant walk to bedroom and then move to bedroom window where they convinced defendant to climb out of the window. Even assuming that defendant lied to officers about his reason for not following their commands, there was no evidence that the defendant did so with intent to hamper or impede the investigation Traffic Law Update

126 State v. Poling, 160 Ohio Misc. 2d 84, 2010-Ohio-5429 (Hocking Cty. Mun. Ct. June 25, 2010) Motion to suppress denied in a violation of TPO case. Excellent discussion of not suppressible under state wiretap statute, Federal Wiretap Act, and Stored Communications Act (mother saved of 16-year-old daughter from defendant). Lakewood v. Suleymanov, 160 Ohio Misc. 2d 94, 2010-Ohio-5963 (Lakewood Mun. Ct. Aug. 31, 2010) Appointment of acting judge to handle case did not prejudice the defendant, and the court s normal magistrate could be appointed as an acting judge for the elected judge. (An excellent discussion and response to old Att y Gen. Op regarding acting judges.) Case Law Update 4.23

127 Intoxilyzer 8000 Issues in Other States 5 Jon J. Saia Saia & Piatt PLL Columbus, Ohio

128 Intoxilyzer 8000 Issues in Other States 5 Jon J. Saia Saia & Piatt PLL Columbus, Ohio TENNESSEE ARIZONA FLORIDA A. The Intoxilyzer 8000 failed to yield satisfactory results on all accuracy, precision, and performance tests. B. At this time, the CMI Intoxilyzer 8000 is not recommended for use. A. Extensive source code litigation. B. Many flaws, some acknowledged by CMI, came to light. C. Source code is not ordered to be turned over to the defense, but the state will still have to show that tests are reliable. A. One court has ordered CMI to pay $1000 per day for not turning over source code. B. Another court has determined that CMI does not have to turn over source code but will have to prove reliability of results in every case. C. Search Fake O Ring video on youtube.com. MINNESOTA A. Extensive source code litigation on the 5000 with the State being the plaintiff. B. State agreed to have NPAS (DataMaster) be the sole provider of instruments to that state to avoid future litigation with CMI. Intoxilyzer

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