The Speedy Trial Act and DUI/OVI charges

The Sixth Amendment to the United States Constitution requires that a defendant charged with a crime like DUI/OVI be brought to trial in an expeditious fashion. However, it does not spell out any exact deadlines. The states are free to pass laws which give citizens more protections, but cannot pass laws that give citizens less protections than the minimum afforded by the U.S. Constitution. In Ohio, Ohio Revised Code Section 2945.71 is Ohio’s Speedy Trial Act. It was passed back in 1974 and gives more protections to Ohio citizens than the Sixth Amendment. R.C. 2945.71(B)(2) provides in pertinent part:

“…[A] person against whom a charge of misdemeanor, other than a minor misdemeanor, is pending in a court of record, shall be brought to trial as follows:… Within ninety days after the person’s arrest or the service of summons, if the offense charged is a misdemeanor of the first or second degree….”

So the state of Ohio must bring a DUI/OVI suspect to trial within 90 days if he does not waive time (that is, he signs a waiver informing the Court that the Court may try him at a time which is convenient, rather than a time as dictated by the statute). It is also important to note that any time you spend in jail is counted against the 90 days on a 3 to 1 scale. So if you have been imprisoned since the day you were pulled over for DUI/OVI, the state only has 30 days to get you to trial. If you were imprisoned for 10 days, then the state only has 60 days to get you to trial.

Upon appellate review, a speedy trial issue raises a mixed question of fact and law. Appellate courts in Ohio may accept the facts found by the trial court on some competent credible evidence, but may also freely review the application of the law to the facts. State v. Hersman, 1998 Ohio App. LEXIS 5712 (November 13, 1998) Fifth District App. No. 98 CA 59 citing State v. Woltz, 1994 Ohio App. LEXIS 5202.

When there is confusion about a point within the Speedy Trial Act, it must be strictly construed against the state. Brecksville v. Cook (1996), 75 Ohio St.3d 53 at 57; State v. Miller (1996), 113 Ohio App.3d 606. A defendant establishes a prima facie case for having the case against him dismissed if he demonstrates that he has not been brought for trial within the time limits set forth in R.C. 2945.71. State v. Butcher (1986), 27 Ohio St.3d 28 at 30-31.

Once the defendant in a DUI/OVI case has established that he has not been brought to trial within 90 days (the prima facie case), the burden shifts to the state to show that the time limit was extended under R.C. 2945.72 (which makes certain exceptions to R.C. 2945.71’s 90 day requirement) to leave fewer than 90 days remaining within which to bring the defendant to trial. Butcher at 31.

If the state fails to produce evidence in rebuttal under R.C. 2945.72, then discharge pursuant to R.C. 2945.73(B) is required. Butcher at 31.

Thus R.C. 2945.71 says you must be brought to trial within 90 days if charged with an OVI and you don’t waive time, and 2945.72 lists several exceptions which can lengthen that time. To quote to the exceptions statute exactly:

“The time within which an accused must be brought to trial, or, in the case of felony, to preliminary hearing and trial, may be extended only by the following:

(A) Any period during which the accused is unavailable for hearing or trial, by reason of other criminal proceedings against him, within or outside the state, by reason of his confinement in another state, or by reason of the pendency of extradition proceedings, provided that the prosecution exercises reasonable diligence to secure his availability;

(B) Any period during which the accused is mentally incompetent to stand trial or during which his mental competence to stand trial is being determined, or any period during which the accused is physically incapable of standing trial;

(C) Any period of delay necessitated by the accused’s lack of counsel, provided that such delay is not occasioned by any lack of diligence in providing counsel to an indigent accused upon his request as required by law;

(D) Any period of delay occasioned by the neglect or improper act of the accused;

(E) Any period of delay necessitated by reason of a plea in bar or abatement, motion, proceeding, or action made or instituted by the accused;

(F) Any period of delay necessitated by a removal or change of venue pursuant to law;

(G) Any period during which trial is stayed pursuant to an express statutory requirement, or pursuant to an order of another court competent to issue such order;

(H) The period of any continuance granted on the accused’s own motion, and the period of any reasonable continuance granted other than upon the accused’s own motion;

(I) Any period during which an appeal filed pursuant to section 2945.67 of the Revised Code is pending.”

Subsection H above gives rise to a lot of controversy. Naturally, if you make a motion for a continuance of a hearing or the trial date, then this time should not count against the state’s 90 days. But the subsection also allows the state to make a motion to continue, and if the reason is a good one, then it will also not be counted against the state’s 90 days. But what is a “reasonable continuance” vs. an “unreasonable continuance”?

In the Case of State v. Kopchak, 2007 Ohio App. LEXIS 3660 (August 7, 2007) Licking Co. App. No. 06CA 108, one of the state of Ohio’s witnesses, a detective, was not available to come in on the trial date. Ohio’s Fifth District Court of Appeals held that:

“Under R.C. 2945.72(H), continuances granted on the state’s motion will toll the running of speedy trial time if the continuance is reasonable and necessary under the circumstances of the case. State v. Saffell (1988), 35 Ohio St.3d 90 at 91. The record must affirmatively demonstrate that the continuance was reasonable and necessary. Saffell at 91. A continuance must be journalized before the expiration of the time limit specified in R.C. 2945.71. State v. King (1994), 70 Ohio St.3d 158 at 162, citing State v. Mincy (1982), 2 Ohio St.3d 6 at syllabus. The reasonableness of a continuance is determined by examining the purpose and length of the continuance as specified in the record. State v. Lee (1976), 48 Ohio St. 2d 208 at 210. “[I]t is difficult, if not unwise, to establish a per se rule of what constitutes ‘reasonableness’ beyond the ninety-day stricture of R.C. 2945.71. Invariably resolution of such a question depends on the peculiar facts of a particular case.” Saffell at 91.”

In Saffell, the Ohio Supreme Court held that the Trial Court did not err in tolling (not counting the days for a continuance against the state) the statute because the arresting officer was on vacation at the time of the trial. In Kopchak, the Fifth District Court of Appeals held that the fact that a detective who was a witness for the state was not available was a good reason to continue the case without the time counting against the state of Ohio.

So in Ohio there is solid case law authority for the proposition that a police officer’s vacation plans may be more important than the speedy trial rights of a suspect.

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