In State v. Brooke, 113 Ohio St.3d 199, 2007 Ohio 1533, at P8, 863 N.E.2d 1024, the Supreme Court of Ohio stated:

“When existence of a prior conviction does not simply enhance the penalty but transforms the crime itself by increasing its degree, the prior conviction is an essential element of the crime and must be proved by the state. State v. Allen (1987), 29 Ohio St.3d 53, 54, 29 Ohio B. 436, 506 N.E.2d 199.  Thus, since the … earlier convictions are elements of [a defendant's] fourth-degree felony, they must be proved beyond a reasonable doubt.  State v. Henderson (1979), 58 Ohio St.2d 171, 173, 389 N.E.2d 494.”

When the state proposes to use a past conviction to enhance the penalty of a later criminal offense, a defendant can challenge that past conviction if the conviction was constitutionally infirm. Id. at P9.  ”A conviction obtained against a defendant who is without counsel, or its corollary, an uncounseled conviction obtained without a valid waiver of the right to counsel, has been recognized as constitutionally infirm.” Id., citing State v. Brandon (1989), 45 Ohio St.3d 85, 86, 543 N.E.2d 501.

In State v. Adams (1988), 37 Ohio St.3d 295, 525 N.E.2d 1361, paragraph two of the syllabus, the Supreme Court held: “When a defendant raises a constitutional question concerning a prior conviction, he must lodge an objection as to the use of this conviction and he must present sufficient evidence to establish a prima facie showing of a constitutional infirmity.’”

The Supreme Court stated more recently in Brooke:  ”‘Where questions arise concerning a prior conviction, a reviewing court must presume all underlying proceedings were conducted in accordance with the rules of law and a defendant must introduce evidence to the contrary in order to establish a prima-facie showing of constitutional infirmity.’ Brandon at the syllabus.  Once a prima facie showing is made that a prior conviction was uncounseled, the burden shifts to the state to prove that there was no constitutional infirmity. Id. at 88.  For purposes of penalty enhancement in later convictions under R.C. 4511.19, when the defendant presents a prima facie showing that prior convictions were unconstitutional because they were uncounseled and resulted in confinement, the burden shifts to the state to prove that the right to counsel was properly waived.” Brooke at P11.

Absent a prima facie case for constitutional infirmity, “a reviewing court must presume all underlying proceedings were conducted in accordance with the rules of law.” Brandon, supra, at the syllabus.

The  Supreme Court further explained in Brandon, “The presumption we entertain is not irrebuttable. [Brandon] simply failed in his burden of presenting sufficient evidence to establish a prima-facie showing that his prior convictions were uncounseled.  Adams, supra.  Indeed, [Brandon's] burden in this regard was hardly difficult. Had [Brandon's] counsel simply asked [him] during testimony whether his prior convictions were counseled, a negative response would have established a prima-facie showing of constitutional infirmity. This one question and answer would have then placed on the state the burden of proving that [Brandon's] prior convictions were counseled. Because [Brandon] failed to meet his burden, we presume his prior convictions were counseled and that, therefore, the convictions could be used to enhance his penalty in the case before us to felony theft.” Id. at 87-88.

In addition, defendants may also easily meet this burden by filing a motion prior to trial, along with an affidavit stating they were unrepresented by counsel and did not validly waive their right to counsel, or other evidence showing the same. See Brooke at P31.  But if the defendant in an OVI case never puts forward some evidence that the previous convictions were uncounseled, or that the right to counsel was not validly waived, then the burden never shifts to the State to put forward evidence on that issue.

“The Due Process Clause of the Fourteenth Amendment, as interpreted in [Brady v. Maryland (1963), 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215], makes the good or bad faith of the State irrelevant when the State fails to disclose to the defendant material exculpatory evidence.”

But what is “material exculpatory evidence” and how do you prove it if the evidence was destroyed before your attorney got to see it?

The U.S. Supreme Court held that the Due Process Clause does consider issues of good faith and bad faith when dealing with the failure of the State to preserve evidentiary material of which no more can be said than that it could have been subjected to tests, the results of which might have exonerated the defendant. The U.S. Supreme Court held that requiring a defendant to show bad faith on the part of the police both limits the extent of the police’s obligation to preserve evidence to reasonable bounds and confines it to that class of cases where the interests of justice most clearly require it, i.e., those cases in which the police themselves by their conduct indicate that the evidence could form a basis for exonerating the defendant.

Thus the U.S. Supreme Court held that unless a criminal defendant can show bad faith on the part of the police, failure to preserve “potentially useful evidence” does not constitute a denial of due process of law.” Id. at 57-58, 109 S.Ct. 333, 102 L.Ed.2d 281.

So the Youngblood court established two tests: one that applies when the evidence is “materially exculpatory” and one that applies when the evidence is “potentially useful.” If the state fails to preserve evidence that is materially exculpatory, the defendant’s rights have been violated.

However, evidence is material only if there is a reasonable probability that had the evidence been disclosed to the defense, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine the confidence in the outcome. State v. Johnston (1988), 39 Ohio St.3d 48, 529 N.E.2d 898, paragraph five of the syllabus.

Stated in other words, “To be materially exculpatory, ‘evidence must both possess an exculpatory value that was apparent before the evidence was destroyed, and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means.’” State v. Colby, Portage App. No.2002-P-0061, 2004 Ohio 343, quoting California v. Trombetta (1984), 467 U.S. 479, 489, 104 S.Ct. 2528, 81 L.Ed.2d 413.

Ohio’s Fifth District Court of Appeals has consistently held that the burden of proof is on the defendant to show the exculpatory nature of the destroyed evidence. See State v. Birkhold (Apr. 22, 2002), Licking App. No. 01CA104, 2002 Ohio 2464, State v. Hill (Mar. 8, 1999), Stark App. No. 1998CA0083, 1999 Ohio App. LEXIS 1542, State v. Blackshear (June 19, 1989), Stark App. No. CA-7638, 1989 Ohio App. LEXIS 2410.

If, on the other hand, the state fails to preserve evidence that is potentially useful, the defendant’s rights have been violated only upon a showing of bad faith. The term “bad faith” generally implies something more than bad judgment or negligence. “It imports a dishonest purpose, moral obliquity, conscious wrongdoing, breach of a known duty through some ulterior motive or ill will partaking of the nature of fraud. It also embraces actual intent to mislead or deceive another.” State v. Franklin, Montgomery App. No. 19041, 2002 Ohio 2370.

The case on this is State v. Piper, 2008 Ohio App. LEXIS 147 (January 11, 2008) Delaware Co. App. No. 07CAC030016, out of Ohio’s Fifth District Court of Appeals. The facts of the case were that a City of Delaware police officer ran the plates of a pickup truck which he passed late at night. The plates came back to an owner whose license was under suspension. The officer followed the truck until it stopped, and when a man matching the description of the owner whose license was suspended got out of the driver’s seat, the officer approached him and asked for ID. The driver admitted that he was driving under suspension.

The Delaware City Police patrol cars have a computerized digital video system which records things 24 hours per day onto a 156 gigabyte hard drive. This hard drive has enough storage space for 8 days of recordings and then it starts to record over itself. The defendant did not make a Motion to Preserve Evidence of the recording of the stop until three months after the stop. Ohio’s Fifth District Court of Appeals ruled that the Trial Court properly overruled the defendant’s motion in limine to dismiss the charges since the defendant could not show bad faith in the police’s destruction of the video evidence.

So get your Motion to Preserve in sooner rather than later. Once the Court grants it, your argument about bad faith becomes a lot easier to make when you can show that the police destroyed evidence or failed to preserve it even though there was a court order requiring them to do so.

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But today, we have a court system which is bent upon tearing up our Fourth Amendment and Article I, Section 14 rights in the quest to put drunk drivers behind bars. One of the most flagrant violations of the Fourth Amendment and Article I, Section 14 rights which the courts have approved comes in the area of sobriety check points. These are roadblocks which the police erect in certain areas and stop all cars, or every nth (fill in the blank) car at random to check to see if the driver is drunk.

Several Ohio Courts (together with the United States Supreme Court) have ruled that such stops taking place at random, without a warrant, nor probable cause, nor even reasonable suspicion that criminal activity is afoot, are somehow not in violation of the Fourth Amendment and Article I, Section 14 of the Ohio Constitution. Let’s take a look at the genius “legal analysis” that these courts have employed:

In the case of Michigan v. Sitz (1990), 496 U.S. 444 a sobriety check point to which all traffic was required to stop, with an average stop of about 25 seconds per car, was found not to violate the Fourth Amendment. Justice Rehnquist, writing for the majority, first correctly stated that such stops are “seizures” as that term is defined by the Fourth Amendment. But it all goes sideways for the learned Justice from there.

The Court held that the important question was not whether or not the stop at a checkpoint was as seizure, but rather whether such seizures are “reasonable under the Fourth Amendment. The Court said that because the seizures were 1) short in duration (averaging 25 seconds); 2) conducted at checkpoints which would not frighten motorists because they are well lit with officers in uniform everywhere; 3) conducted according to written guidelines; and 4) were 1.5% effective in arresting drunk drivers, this made the random checkpoints “reasonable” under the Fourth Amendment.

The problem with the ruling (as pointed out by Justice Stevens in his dissent) is that just because an intrusion into our Fourth Amendment Rights is slight, does not mean that it is permissible. Courts have consistently required (until this case) that there must still be some reasonable suspicion that the drivers stopped have done something wrong.

The Rehnquist majority has held that where the needs of law enforcement conflict with our Fourth Amendment rights, our rights are not “reasonable” and must give way. But here is a news flash for Mr. Rhenquist (though now passed away). The needs of law enforcement and our Fourth Amendment rights are always in conflict. That’s the point of the Fourth Amendment.

The Rehnquist Majority also held that an arrest rate of 1.5% was sufficient to show the effectiveness of and justification for the program. The dissent scoffed at this notion, and rightfully so. Would a 1.5% return on your money make you want to keep investing in a mutual fund? It took 19 police officers 1.5 hours to arrest 2 suspected drunk drivers (no word on whether or not these two were convicted). Had those 19 officers been out on patrol, looking for cars weaving in and out of lanes, how might the numbers have changed?

The Rehnquist Majority also foreclosed certain debates from taking place, as when the learned justice wrote that “No one can seriously dispute the magnitude of the drunken driving problem….” Statistically, Justice Rehnquist quoted the figure of 25,000 drunk driving deaths each year. The Fatality Analysis Reporting System shows crash fatalities in the U.S. to average between 41,000 and 45,000 per year. Are we really to believe that more than half of these fatalities were caused by drunk drivers, who Rehnquist wrote made up only 1 to 1.5% of the drivers on the road at night?

Mark Twain once said that figures don’t lie, but liars figure. Mr. Rehnquist was all too willing to swallow some statistical nonsense at the price of our liberties.

Another issue that was unaddressed was this business about the 25 second average delay. Did that count the amount of time that people approaching the check point had to wait for the cars in front of them to clear it? What was the longest delay and what was the shortest?

In Ohio, the Second District Court of Appeals was having none of this crap. The Court held as follows:

“In essence, the sobriety checkpoint required all travelers on a particular highway at a particular time to furnish identification, as well as a vehicle registration. From time to time, in other countries, travelers have been required to produce their papers for inspection by the police. This has been a popular tool of totalitarian regimes to maintain control over the citizenry. It has yet to flourish on the soil of this country, and we are reluctant to provide it an opportunity to take root, no matter how laudable the purpose for which it is presently espoused. In our view, the sobriety checkpoint in the case before us offends against the right of citizens to be secure from unreasonable searches and seizures, in violation of the Fourth Amendment to the Constitution of the United States.”

The factors which Ohio’s Second District Court of Appeals relied upon in distinguishing the case from the insanity in Sitz were that the checkpoints 1) detained drivers for an average time of two to five minutes, rather than 25 seconds; 2) the officers required production of driver’s licenses and registration papers; 3) certain motorists credentials were computer checked according to the officers’ whim rather than upon a set plan; and 4) the check point searched not just for drunks, but for unlicensed drivers as well.

The case was State of Ohio v. Blackburn, 1994 Ohio App. LEXIS 1171 (March 23, 1994) Clark Co. App. No. 3084.

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The second charge concerns having .08 or above in blood alcohol content, and it makes no difference whether or not your ability to drive is appreciably impaired.

When dealing with an impaired charge, if there was no evidence of erratic driving, defense attorneys make much of this before the court. How can the state prove beyond a reasonable doubt that the suspect was impaired if there was no erratic driving?

Ohio’s Fifth District Court of Appeals recently considered a defendant’s argument that there was insufficient evidence to convict him of drunk driving. The Court of Appeals overruled this objection though. The Court cited tot he following facts:

The officer testified that at 1:51 a.m., he witnessed Appellant turn onto a road without using his turn signal. The offier testified that when he activated his overhead lights the Appellant did not stop, but continued a short distance to pull into a private driveway. The officer then testified that he followed Appellant and pulled in behind Appellant’s vehicle, while his lights were still activated. The officer then testified that Appellant got out of his car and began to walk towards the residence. The officer told the court that he had to instruct Appellant that he needed to come and talk with him. At that time the officer detected the odor of alcohol coming from Appellant and saw that Appellant’s eyes were bloodshot and glassy. Appellant admitted to Trooper Putnam that he had a few beers, the last one being a half-hour before the stop.

In addition to this evidence, the Appellant refused to submit to field sobriety tests. He also refused to submit to a breath test. The Supreme Court of Ohio has held that a defendant’s refusal to submit to a breath test is admissible and probative of intoxication at the time of the refusal. Westerville v. Cunningham (1968), 15 Ohio St.2d 121, 239 N.E.2d 40. Thus, in Ohio’s Fifth District Court of Appeals, there need be no evidence of erratic driving or poor motor skills to prove beyond a reasonable doubt that a suspect has consumed enough alcohol to impair his driving.

All you need is a minor traffic violation like a failure to use a turn signal, together with an 1) officer’s perception that the suspect is slow to note that he is being pulled over; 2) typical indicia of consumption of alcohol; 3) admission of drinking; and 4) refusal to test. The case on this is State v. Eckert, 2008 Ohio App. LEXIS 83 (January 8, 2008), Licking Co. App. No. 2007 AP 04 0029.

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In that case, the suspect argued that the State should not be permitted to use her 2004 conviction to enhance the penalty for her current charge because that conviction is constitutionally infirm. She bases this conclusion on her assertion that when she pleaded no contest to the first charge, she was without legal counsel and had not knowingly waived that right. The suspect did not attack her second conviction for operating a motor vehicle while intoxicated. Thus, the question before the Court was whether her current charge should be considered a second offense as opposed to a third offense for sentencing purposes.

Generally, the law does not permit a criminal defendant to attack a previous conviction in a subsequent case. State v. Brooke, 113 Ohio St. 3d 199, 2007 Ohio 1533, at P9, 863 N.E.2d 1024 (2007). There is an exception, however, “when the state proposes to use the past conviction to enhance the penalty of a later criminal offense.” Id. In that situation, a defendant may attack the constitutionality of a prior conviction if it was obtained in violation of the defendant’s Sixth Amendment right to counsel. Id. The Supreme Court of Ohio has held that an uncounseled conviction, obtained without a valid waiver of the Sixth Amendment right to counsel, is “constitutionally infirm” if the result was a sentence of incarceration. Id. at Paragraph 9 (citing State v. Brandon, 45 Ohio St. 3d 85, 86, 543 N.E.2d 501 (1989); Nichols v. United States, 511 U.S. 738, 114 S. Ct. 1921, 128 L. Ed. 2d 745 (1994)).

Thus, an uncounseled conviction cannot be used to enhance the penalty for a later conviction if the earlier conviction resulted in a sentence of confinement. Brooke, 113 Ohio St. 3d 199, at P12, 2007 Ohio 1533, 863 N.E.2d 1024 (citing Nichols v. United States, 511 U.S. 738, 749, 114 S. Ct. 1921, 128 L. Ed. 2d 745 (1994)).

If a defendant questions the use of a prior conviction based on her having entered an uncounseled plea in the earlier case, the burden is on the defendant to make “a prima facie showing of constitutional infirmity.” Brooke, 113 Ohio St. 3d 199, 2007 Ohio 1533, at Paragraph 11, 863 N.E.2d 1024 (citing State v. Brandon, 45 Ohio St. 3d 85, 543 N.E.2d 501, syllabus (1989)). In order to meet that burden, the defendant must present evidence showing that her earlier plea was uncounseled and resulted in a sentence of incarceration. Id. Then the burden shifts to the state to prove the defendant’s right to counsel was properly waived. Id. In order to meet its burden, the State must prove there was a knowing, voluntary, and intelligent waiver of the defendant’s Sixth Amendment right to counsel. In this case, the Court must consider whether the suspect’s first conviction was constitutionally infirm.

The parties stipulated that the suspect was not represented by counsel when she pleaded guilty to her first violation of Section 4511.19. They also stipulated that she did not sign a written waiver of her right to counsel and served three days of incarceration for that conviction. Ohio’s Ninth District Court of Appeals held that the suspect met her burden of showing constitutional infirmity as she provided evidence, by stipulations of fact, that her first misdemeanor conviction was uncounseled and resulted in a sentence of incarceration. Thus, the burden shifted to the State to prove a valid waiver of her right to counsel.

On a procedural note, the Ninth District Court of Appeals pointed out that the suspect brought this objection to the trial court’s attention in the form of a pre-trial motion to dismiss. This was actually not the appropriate vehicle for this objection because, in this case, the enhancement only affected the penalty and did not raise the degree of the offense charged. A prior conviction is not an essential element of the crime that must be alleged and proven by the State unless the enhancement actually increases the degree of the crime charged. Brooke, 113 Ohio St. 3d 199, 2007 Ohio 1533, at P8, 863 N.E.2d 1024 (citing State v. Allen, 29 Ohio St.3d 53, 54, 29 Ohio B. 436, 506 N.E.2d 199 (1987)). In this case, the enhancement from a second to third offense merely increased the penalty without affecting the degree of the crime charged. As the prior conviction was not an essential element of the crime, the issue would not have arisen until the sentencing phase. Allen, 29 Ohio St.3d at 55 (citing State v. Cichy, 18 Ohio App. 3d 6, 18 Ohio B. 30, 480 N.E.2d 90 (1984)).

The suspect argued in her motion that her first conviction could not be used for enhancement of her sentence. She placed sufficient evidence of constitutional infirmity before the trial court to shift the burden to the State to prove the validity of the 2004 conviction for sentence enhancement purposes. Ms. Combs then appealed the trial court’s enhanced sentence because it was based on the constitutionally infirm prior conviction. Although objecting at the sentencing phase, rather than before trial, would have been preferable, this Court has determined that Ms. Combs fully presented this issue to the trial court and has preserved the issue for appeal.

WAIVER OF THE RIGHT TO COUNSEL

The Sixth Amendment to the Constitution of the United States of America provides that “In all criminal prosecutions, the accused shall enjoy the right to. . . have the assistance of counsel for his defense.” If an uncounseled conviction results in a sentence of incarceration, that conviction cannot be used to enhance the penalty for a later conviction. Brooke, 113 Ohio St. 3d 199, 2007 Ohio 1533, at P12, 863 N.E.2d 1024 (citing Nichols v. United States, 511 U.S. 738, 749, 114 S. Ct. 1921, 128 L. Ed. 2d 745 (1994)). In this case, the parties agree that the suspect was not represented by counsel when she pleaded guilty to her first violation of Section 4511.19 of the Ohio Revised Code. In order to meet its burden in this case, the State must prove there was a knowing, voluntary, and intelligent waiver of Ms. Combs’ right to counsel when she entered her guilty plea in 2004. Id. at P11.

“In all cases where the right to counsel is waived, the court ‘must make sufficient inquiry to determine whether defendant fully understands and intelligently relinquishes that right.’” Brooke, 113 Ohio St. 3d 199, 2007 Ohio 1533, at P53, 863 N.E.2d 1024 (quoting State v. Gibson, 45 Ohio St. 2d 366, 345 N.E.2d 399, paragraph two of the syllabus (1976)). In petty offense cases, involving a penalty of no more than six months incarceration, all waivers of counsel must be made on the record in open court. Id. at P22-23. In serious offense cases, involving penalties including more than six months of incarceration, any waiver of counsel must be made both on the record in open court and in writing filed with the court. Id. at Paragraph 24.

Section 4511.19(G)(1) of the Ohio Revised Code, provides that operating a motor vehicle while intoxicated, as a first offense, is a first degree misdemeanor for which the penalty includes a term of incarceration for a maximum of six months. Accordingly, Ms. Combs’ first conviction for a violation of that section in 2004 was a petty offense. Therefore, a waiver of counsel for that plea hearing was required to have been “in open court” with the “advice and waiver . . . recorded as provided in Rule 22.” Brooke, 113 Ohio St. 3d 199, at P22, 2007 Ohio 1533, 863 N.E.2d 1024 (citing Rule 22 of the Ohio Rules of Criminal Procedure, requiring waivers of counsel in petty offense cases to be recorded).

A knowing, voluntary, and intelligent waiver cannot be presumed from a silent record. Brooke, 113 Ohio St. 3d 199, at P25, 2007 Ohio 1533, 863 N.E.2d 1024 (citing State v. Wellman, 37 Ohio St. 2d 162, 309 N.E.2d 915, at paragraph two of the syllabus (1974)). Thus, “[t]he record must show, or there must be an allegation and evidence which shows, that an accused was offered counsel but intelligently and understandingly rejected the offer. Anything less is not waiver.” Brooke, 113 Ohio St. 3d 199, at P25, 2007 Ohio 1533, 863 N.E.2d 1024 (quoting State v. Wellman, 37 Ohio St. 2d 162, 309 N.E.2d 915, at paragraph two of the syllabus (1974) (citing Carnley v. Cochran, 369 U.S. 506, 82 S. Ct. 884, 8 L. Ed. 2d 70 (1962))). The Ohio Supreme Court has determined that, in a petty offense case, even in the absence of a hearing transcript, a waiver of counsel form signed by the judge and the defendant at the plea hearing and filed with the court may be sufficient to satisfy these requirements. Id. at P47. In this case, the question is whether the record contains evidence that shows that Ms. Combs waived her Sixth Amendment right to counsel during her 2004 plea hearing.

There is nothing in the record indicating that the 2004 plea hearing was recorded as required by Rule 22 of the Ohio Rules of Criminal Procedure. Therefore, it is impossible to determine whether the suspect was advised of her right to counsel and voluntarily waived that right in open court. The only evidence tending to show that the trial court advised Ms. Combs of her right to counsel and gave her the opportunity to voluntarily reject the offer, was the journal entry from the plea hearing. That entry purported to recount the details of the hearing including that “[Ms. Combs] was advised of the . . . right to counsel [and] the right to have counsel appointed if indigent . . . [Ms. Combs] knowingly waived these rights.” That entry was, however, only signed by the judge. Ms. Combs did not sign it. Accordingly, that document cannot be relied upon as evidence of Ms. Combs’ voluntary waiver of her right to counsel. A knowing, voluntary, and intelligent waiver cannot be presumed from a silent record. Brooke, 113 Ohio St. 3d 199, 2007 Ohio 1533, at P25, 863 N.E.2d 1024 (citing State v. Wellman, 37 Ohio St. 2d 162, 309 N.E.2d 915, at paragraph two of the syllabus (1974)). Without an acknowledgment form signed by Ms. Combs and in the absence of a hearing transcript, it is impossible to say that she voluntarily waived her Sixth Amendment right to counsel when she pleaded guilty to her first offense of operating a vehicle while intoxicated. Accordingly, the 2004 conviction was uncounseled and cannot be used to enhance the penalty for her current offense.

The State has argued that despite the uncounseled nature of the suspect’s first conviction, it was not error for the trial court to use that conviction to sentence Ms. Combs to the mandatory minimum sentence for a third time offender under Section 4511.19 of the Ohio Revised Code. In support of this argument, the State has relied upon the United States Supreme Court case of Nichols v. United States, 511 U.S. 738, 114 S. Ct. 1921, 128 L. Ed. 2d 745 (1994). Specifically, the State has pointed to language in that opinion regarding the United States Supreme Court having upheld the constitutionality of laws that allowed the consideration of “a wide variety of factors” in sentencing a criminal defendant, including “past criminal behavior, even if no conviction resulted from that behavior.” Nichols, 511 U.S. at 747.

Nichols, however, is inapplicable to this case. Mr. Nichols was being sentenced under the United States Sentencing Guidelines and was assessed one criminal history point for a prior uncounseled misdemeanor conviction that had resulted in a fine, but no sentence of incarceration. The relevant sentencing guidelines specifically authorized assessment of points for prior uncounseled misdemeanor convictions, provided they had not resulted in a sentence of incarceration. The Supreme Court affirmed the conviction and sentence, adhering to a previous holding that rested upon the bright line distinction “between criminal proceedings that resulted in imprisonment, and those that did not.” Nichols, 511 U.S. at 746 (citing Scott v. Illinois, 440 U.S. 367, 372, 99 S. Ct. 1158, 59 L. Ed. 2d 383 (1979)). In Nichols, the Court held that an uncounseled misdemeanor conviction, valid because it did not result in a sentence of incarceration, “is also valid when used to enhance punishment at a subsequent conviction.” Nichols, 511 U.S. at 749. The Ohio Supreme Court has since relied on Nichols for the proposition that any uncounseled conviction that did result in a sentence of incarceration cannot be used for subsequent penalty enhancement. Brooke, 113 Ohio St. 3d 199, at P12, 2007 Ohio 1533, 863 N.E.2d 1024 (citing Nichols, 511 U.S. at 749).

The State’s reliance on Nichols is, therefore, misplaced. The facts are distinguishable primarily because Ms. Combs’ 2004 conviction did result in a sentence of incarceration. Furthermore, Ms. Combs was not sentenced under the federal guidelines used in the Nichols case. The suspect was sentenced under Section 4511.19 of the Ohio Revised Code. Section 4511.19(G)(1)(c) provides that “an offender who, within six years of the offense, previously has been convicted of or pleaded guilty to two violations of division (A) or (B) of this section or other equivalent offenses is guilty of a misdemeanor” carrying a “mandatory jail term of thirty consecutive days” and a maximum term of one year. This is a statutory penalty enhancement requiring certain conditions to be met. The statute requires a prior conviction or a guilty plea. It does not allow for the consideration of mere allegations of prior criminal behavior that did not result in either a conviction or a guilty plea.

According to the trial court’s judgment entry from which this appeal was taken, the suspect was sentenced as a third time offender within six years. She was given the mandatory minimum sentence of 30 days in jail with the maximum possible sentence for a third time offender hanging over her head in the form of 335 additional days suspended. As discussed above, Ms. Combs did not, in fact, qualify as a third time offender under the terms of the statute. For the reasons discussed above, the suspect’s first offense was unavailable for use to enhance a later penalty. Therefore, the suspect’s record contained only one valid prior conviction for a violation of this section at the time she was charged with her current offense. Accordingly, the trial court’s judgment enhancing the sentence for operating a motor vehicle while intoxicated is reversed and the cause is remanded for resentencing.

CONCLUSION

The trial court’s judgment sentencing the suspect as a third time offender under Section 4511.19 of the Ohio Revised Code was reversed. The suspect’s guilty plea in her 2004 case was accepted without the benefit of legal counsel and in the absence of a knowing, voluntary, and intelligent waiver of her Sixth Amendment right to counsel. Therefore, the suspect’s uncounseled conviction, which resulted in a sentence of incarceration, cannot be used to enhance the penalty for a subsequent offense under Section 4511.19.

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But the problem is that the Fourth Amendment requires reasonable suspicion of criminal activity to pull a vehicle over in the first place. Absent such reasonable suspicion, all evidence gathered pursuant to the stop must be suppressed. There is case law in Ohio which stands for the proposition that having only one functioning taillight is legal.

Thus if, at the suppression hearing, your attorney gets the officer to testify that the only reason that he pulled you over was for the broken taillight, then it would be reversible error for the trial court not to suppress all evidence from the stop and onward, leaving the prosecutor with no evidence to place before a jury.

The cases on this are State of Ohio v. Guysinger (1993), 86 Ohio App.3d 592 (Fourth District); State of Ohio v. Caldwell, 1998 Ohio App. LEXIS 148 (Fourth District); State of Ohio v. Frye (1985), 21 Ohio App.3d 133 (Ninth District); State of Ohio v. Roach, 1996 Ohio App. LEXIS 3581 (Fourth District); and State of Ohio v.
Vannest, 1995 Ohio App. LEXIS 5691 (Fourth District).

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The most common test is a breath test. Ohio Revised Code 4511.19(D)(1) provides that the analysis of bodily substances must be conducted in accordance with methods approved by the Ohio Director of Health as codified in the Ohio Administrative Code.

Ohio Administrative Code Section 3701-53-04(A)(1) requires that breath testing machines be calibrated once every seven days. The machines are calibrated by pumping a mixture of air and ethyl alcohol from a bottle through the machine. If the results are within .005 of the target value listed on the bottle, then the machine passes the test. If the results are more than .005 off, then the machine is tested again using a different bottle. If it then reads within .005 then the machine passes. But if it reads over .005 again, then the machine must be serviced before it can be used again.

The police are required to keep calibration logs containing all calibration tests for the last three years at the testing site. Ohio Administrative Code Section 3701-53-01(A). One police agency failing to do this recently was the Genoa Township Police Department. Officer Craig Jones, a certified senior operator of the testing device testified in court that when the machine failed the test, the results of those calibrations were not recorded in the logs.

The Fifth District Court of Appeals held that this was a violation of Ohio Administrative Code Section 3701-53-01(A) since the code section required that all calibration results, successful and unsuccessful, must be recorded and kept for three years. The Court of Appeals reversed the trial court’s holding that the results of the test were admissible and remanded the matter back to the trial court for further proceedings.

The case on this is State v. Shokery, 2007 Ohio App. LEXIS 3357.

Fight your DUI charge

This was an extremely controversial ruling amongst police officers, prosecutors, and Mothers Against Drunk Drivers. But the Ohio Supreme Court wasn’t going out on much of a limb. The NHTSA’s own manual which sets up the three standardized field sobriety tests, the Horizontal Gaze Nystagmus Test, the Walk and Turn Test, and the One Leg Stand Test plainly states that any deviation, no matter how slight from the instructions in the manual compromises the integrity of the tests.

But the Ohio Legislature wasn’t going to sit back and allow the Ohio Supreme Court to determine what evidence it would and wouldn’t consider. They passed a law which said that standardized field sobriety testing done in substantial (rather than strict) compliance was admissible at trial.

Back in the old days, a judge would have snorted something about separation of powers and how legislatures routinely prove that any goddamned wallpaper hanger can be a legislator and found the law unconstitutional. But in today’s era of shy judges, much of the power of the judicial branch was simply handed over to the Legislature in the Ohio Supreme Court’s recent ruling in State of Ohio v. Bocsar.

In that case, the Ohio Supreme Court found that while courts of Ohio did have the power to fashion rules of evidence, that the rule from Homan that strict compliance with NHTSA guidelines was required was not a rule of evidence. Never have so many worked so hard to give up so much.

Just what basis the Legislature had for saying that substantial compliance with the NHTSA tests reliable when the NHTSA books themselves say that it doesn’t has never been revealed to us. But perhaps if the Legislature enacts a bill that says water runs up hill we should all start building hydroelectric plans on mountain tops.

Of course Mark Twain must be given the last word (or two). He said: “No man’s wallet is safe while the legislature is in session.” He also said that: “Figures don’t lie, but liars figure.”

Fight your DUI charge

Here is how I go about defending a DUI case:

The very first thing I analyze when looking at a DUI or OVI case is whether or not the police officer used a proper traffic ticket (an Ohio Uniform Traffic Ticket as required by the Traffic Rules) and whether or not the police wrote the charges properly on the ticket. Very rarely, the police make a mistake here, not often, but often enough to check.

The second thing I analyze when looking at the facts of a DUI case is whether or not there was reasonable suspicion that my client violated any law. Usually the client is pulled over for a minor traffic violation like failing to use a turn signal or speeding. Any violation of the traffic laws, no matter how de minimis, even expired tags, is sufficient to allow the police officer to pull the driver over. But not all police officers have a firm grasp of what the traffic laws entail. Without reasonable suspicion that my client violated the law, the police officer’s act of pulling my client over in the first place is a violation of his Constitutional rights, the remedy for which, is suppression of the evidence.

The third thing that I look for in a DUI case is whether or not the police officer had probable cause to arrest my client and perform a search of his body to determine his blood alcohol content. Without a warrant, the police need probable cause to believe that my client was drinking and driving. Courts have ruled that simply appearing drunk is not enough. There also has to be erratic driving and/or an admission of having consumed alcohol. If there is no probable cause to arrest my client and search his blood for alcohol, then any evidence gathered in violation of his rights must be suppressed.

If my client took the breath test back at the station, the fourth thing I will check for in a DUI case is whether the officer tested my client properly. In order to be admissible in evidence, the officer must have a current senior operator’s license and has to have observed my client for 20 minutes prior to the test to make sure that no foreign material was put in his mouth which could skew the test results. The test must also have been administered within three hours of my client’s operation of the vehicle.

The fifth thing I look at in a DUI case is whether or not the machine used to test my client has been properly and regularly calibrated by a qualified individual (a currently licensed senior operator). For instance, the Ohio Director of Health has mandated that the BAC Datamaster (the most commonly used breath testing device) must be tested by a senior operator once every seven days. The machine is tested by taking out a bottle containing a mixture of air and ethyl alcohol at measured levels (a sticker on the side of the bottle might say “.085”).

The senior operator then pumps that air through the machine and looks at the reading. If the machine reads within .005 of what the sticker on the side of the bottle says, then the machine passes the test. But if the machine is off by more than .005, then the officer must pull out a new test bottle. If on the second test, the machine is within .005 then the machine passes. But if the machine is off by .005 or more again, then the machine must be taken offline and serviced. Testing bottles must be discarded within three months of their first use, and must not be used more than a year after their manufacture. If the tests are not properly performed, or if the paperwork (which must go back three years and be kept in the same room as the machine) does not show that the tests were properly performed, then the results of my client’s test must be suppressed.

If I can get the DUI test results suppressed, or if my client refused to take the DUI test, then I will want to take a close look at the evidence against my client, such as the police reports and the video of the stop (I will want to have looked at this stuff anyway to determine if there was reasonable suspicion and probable cause). I will always file a Motion to Preserve Evidence the moment I sign up with a client. That puts the police and the prosecutor on notice that I don’t want evidence destroyed. If evidence is destroyed after I filed my motion (perhaps the police officer pulled the wrong tape out of the cabinet and my client’s stop got taped over), then there is case law supporting the proposition that the case must be dismissed unless the prosecutor can convince the judge that the destroyed evidence would not have helped my client.

If the video is pretty bad, with my client slurring his words and staggering around, then I am going to advise my client to plead guilty to the DUI charges and take the best deal that the prosecutor will offer. You don’t want to put the court to the trouble of a jury trial when it is obvious that your client is guilty. Most first time OVI/DUI clients get the minimum sentence of three days in an alcohol intervention program held at a local hotel. But if the court thinks that my client was gumming up the system when he should have taken a plea bargain, the court has the discretion to sentence him to up to 180 days in jail. The courts aren’t supposed to think this way, but they do sometimes. They even have a name for it in the business. It is called courtroom rent.

There is one other issue I am looking at as well, and that is getting any administrative license suspension imposed upon my client either dismissed or made as short as possible.

My client will be entitled to a hearing on whether or not the arresting officer completed a sworn statement (”BMV Form 2255″) indicating: (1) that he had reasonable grounds to believe, before the arrest, that appellant was driving under the influence of alcohol or drugs; (2) that appellant was arrested and charged with DUI; (3) that the officer asked appellant to take a chemical test, advised him of the consequences of taking it or refusing it, and gave him a statutorily required form explaining these consequences; (4) that my client appellant submitted to the test and tested above the legal limit and (5) that the officer served a notice of suspension on appellant.

There are situations where the police have not arrested my client when they ask them to take the test. In situations where my client was injured and taken to the hospital, the police often show up at the hospital bed and simply read the form to my client. But if they never told him that he was under arrest, then the refusal to test will not support an ALS. If my client was not operating his vehicle on a public road or on private property open for public purposes (like a supermarket parking lot) then there is no duty to take the test.

Lastly, if my client is convicted and is facing days in jail (a second offense carries a mandatory 10 days in jail), then I am going to think a little about the facility in which my client is going to be serving his time. Small rural jails are the best ones to be in because the client will often be alone (and so won’t be bothered by other inmates). In urban centers, with lots of people in an over crowded facility, jail can be a traumatic experience. But some judges in such places will be amenable to a motion for your client to serve his or her time in a rural jail. I always try to get my people into the jail up in Mt. Gilead. The client will have to pay a fee for the time spent, but the clients are rarely hassled by anyone and the jail staff up there is highly professional. Not all judges will agree to this though, but it is worth a try.

Fight your DUI charge

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