I always feel like…somebody’s watching me!  Man I am really on a 1980s music kick right now!  Somebody’s Watching Me, by Rockwell along with the King of Pop himself, Michael Jackson on the chorus.  Once again, for whatever reason, this song played in my head while I read the case of State v. Romes, 2016-Ohio-5772.

Romes, without a doubt was having one hell of a night until he made that fatal mistake of getting into his vehicle.  Romes was out celebrating a friend’s birthday at a local tavern.  During this little par-tay, a couple was enjoying a little romantic evening out and started observing Romes at the bar drinking heavily.  The woman, Ms. Brummer, was also friends with the same friend Romes was there in celebration.

The tavern closed at 2:30 a.m., and all of the patrons begin to descend out to the parking lot, to end the night and begin the early stages of their foreseeable hangovers.  In this group is Romes, Ms. Brummer, and her man.  As Ms. Brummer and her man left the tavern in their vehicle, they noticed that Romes had pulled off the road and into the gravel behind the tavern.

Being a good tavern buddy, Ms. Brummer pulls up alongside of Romes vehicle to assess the situation.  Unfortunately for Romes, he was slouched over his steering wheel.  Ms. Brummer, however, manages to wake Romes up.  During their conversation, Ms. Brummer noticed that Romes has slurred speech.  Now at this point, Ms. Brummer tries to get Romes to come with her and her man friend because they believed he was intoxicated.  Romes refuses, but instead agrees to drive to another friend’s house just down the road to sleep it off.

Romes follows Ms. Brummer and they eventually make it to the house.  Leaving Romes behind, Ms. Brummer and her man friend are at a stop sign when the felt a forceful hit from the rear of their car.  And wouldn’t you know it; it was their good buddy Romes!

Romes gets out of his car and tells Ms. Brummer that he was “sorry [he] drank so much.”  According to Ms. Brummer, Romes’ speech was still slurred and he appeared disoriented.  Not wanting to stick around to wait for police, Romes took off from the scene of the accident.  A bit latter, a trooper shows up on the scene and gets a very lovely story from Ms. Brummer about what just happened.

With some damning information in hand, the trooper takes off for Romes’ residence.  Upon arrival, Romes answers his door for the trooper.  The trooper noticed that that Romes had “extremely bloodshot and glassy eyes” and slurred speech.  In addition, the trooper further observed Romes carrying a whiskey in one hand and a beer in the other hand.  So, with his own observations and the information he received from Ms. Brummer, the trooper issued Romes with an OVI citation.

To make matters even better for Romes, Romes spilled his guts to Ms. Brummer’s mother!  During a phone call conversation, Romes kept apologizing about the accident.  Specifically, Romes told her that he had too much to drink, he should not have been driving, and he did not mean to hurt anyone.  When discussing why he left the scene of the accident, Romes stated that he wanted to get back home to set out bottles of alcohol to make it look like he was drinking at home.

Wow!  Do you need a drink after reading those facts?!?  I know I do, and I had to type them out!

Alright, so we all know how this went at trial…Romes was convicted of OVI.  A true shocker.

On appeal, Romes argued that his OVI conviction is based on insufficient evidence because the trooper never actually saw him operating a car and the testimony provided by Ms. Brummer and her mother is unreliable.

Are you ready?!?!  Because here comes the part where I discuss law!  Yay!!

Let’s start with the basics!

To prove impaired driving ability, the state can rely on physiological factors (e.g., odor of alcohol, glossy or bloodshot eyes, slurred speech, confused appearance) to demonstrate that a person’s physical and mental ability to drive was impaired.  State v. Peters, 2008-Ohio-6940.

There is no prerequisite that an officer observe erratic driving in order to effectuate an arrest for driving under the influence.  State v. Kurjian, 2006-Ohio-6669.  To boot, virtually any lay witness, without special qualifications, may testify as to whether or not an individual is intoxicated.”  State v. Delong, 2002-Ohio-5289.

Based on that very fascinating case law, the appellate court found that a rational trier of fact (trial court/jury) could have concluded that Romes was intoxicated at the time that he operated his vehicle.

Here is my take away from this alcohol induced Jerry Springer show, TAKE AN UBER!!  Remember, Romes had a way out of this mess by just getting in the car with Ms. Brummer!

Romes was convicted of OVI based on some other tavern patrons’ observations!  Don’t be that guy!

In closing, be safe and responsible during your beer drinking adventures!

www.daytonduilaw.com

Our love is in jeopardy, baby…ooooh-ooh-oooooh!  Sorry, while reading the case I am about to discuss with you, the song Jeopardy by the Greg Kihn Band kept going through my head on repeat.  Almost like a theme song while I read the case.

Alright, enough of my rambling.  Let’s get to the case at hand!  So crack open that beer and accompany me down the beer aisle for an analysis of State v. Silka, 2016-Ohio-5784.

Silka was issued a traffic ticket for two counts of OVI and one count of Failure to Maintain an Assured Clear Distance.  Silka’s ticket stated in the “Prior OVIs” section the number of prior OVIs was five and the years of the prior OVIs were 1997, 2005, 2009, 2011, and 2014.

At his arraignment, Silka entered a plea of guilty to one first-degree misdemeanor count of OVI and pled no contest to the Failure to Maintain.  The pleas were accepted by the municipal court.  The municipal court then set the matter for a sentencing hearing, a little over a month out from Silka’s arraignment.

Prior to Silka’s sentencing hearing, the city prosecutor filed a motion to dismiss the matter without prejudice, arguing that the case “should have filed as a third degree felony.”  With that in hand, the municipal court granted the city prosecutor’s motion to dismiss.

After being dismissed, the State filed two criminal complaints asserting that Silka committed two OVI violations, felonies in the third degree.  Silka’s case was then bound over to the grand jury where Silka was subsequently indicted on both counts of OVI.

At his felony arraignment, Silka entered a plea of not guilty and immediately filed a motion to dismiss the felony OVI charges.  Silka argued that the felony charges must be dismissed on the grounds of double jeopardy because he already entered a plea of guilty to misdemeanor OVI arising from the same offense.  The State filed a motion in opposition.

The trial court found that the ticket given to Silka did not contain the appropriate information to charge him with a felony, and thus Silka was properly convicted of a misdemeanor offense.  Therefore, double jeopardy applied to prevent the felony charges for the same offense.

Not wanting to accept this decision, the State filed an appeal to argue that the trial court erred in granting Silka’s motion to dismiss.

Alright, I am going to toss a bunch of law out you right now.  I really don’t want to, but unfortunately the law is kind of important this time around.  So bear with me, and I promise to not bore you to death.  It will all tie together…trust me!

Both the Double Jeopardy Clause for both the U.S. Constitution and the Ohio Constitution prohibits 1) a second prosecution for the same offense after acquittal, 2) a second prosecution for the same offense after conviction, and 3) multiple punishments for the same offense.  State v. Gustafson, 76 Ohio St.3d 425.  Jeopardy attaches when a trial court accepts a defendant’s guilty plea.  State v. Knaff, 128 Ohio App.3d 90 (1^st Dist. 1998).

A municipal court’s subject matter jurisdiction in felony cases is limited to any hearing prior to indictment or hearing to determine whether probable cause exists. R.C. 1901.20(B); State v. Schooler, 2004-Ohio-2430.  When an offender is before a municipal court on a felony charge, the court does not have jurisdiction to try or convict a defendant of any crime, including a misdemeanor.  State v. Nelson, 51 Ohio App.2d 31.

Now, a complaint prepared pursuant to Ohio Traffic Rules simply needs to advise the defendant of the offense with which he is charged, in a manner that can be readily understood by a person making a reasonable attempt to understand.  State v. Wysin, 2013-Ohio-5363.

When the presence of one or more additional elements makes an offense one or more serious degree, the affidavit, complaint, indictment, or information either shall state the degree of the offense which the accused is alleged to have committed, or shall allege such additional element or elements.  R.C. 2945.75(A)(1).  If it DOES NOT, the affidavit, complaint, indictment, or information is only effective to charge the least degree of the offense. Id.  Thus, a complaint is sufficient to charge a third degree felony OVI when it indicates the offender “has been convicted of or pleaded guilty to” a felony violation of R.C. 4511.19(A), regardless of when the violation and the conviction or guilty plea occurred.  R.C. 4511.19(G)(1)(e).

Well was that not fun or what?!?  Okay, now that is out of the way, what does all this mean for Silka?

Silka’s traffic ticket indicated that he had five prior OVIs and listed the years of those convictions.  The ticket DID NOT, however, state the degree of the offense with which he was currently being charged nor did it indicate whether any of his prior OVI convictions were felonies, as required by R.C. 2945.75(A)(1).  Thus, Silka’s ticket was only effective to charge him with the least degree of an OVI offense – a first degree misdemeanor.

With all of that, the appellate court found that the municipal court had jurisdiction to accept Silka’s guilty plea and jeopardy attached once the court accepted Silka’s plea to the misdemeanor OVI.  Ergo, Silka’s felony OVI charges are barred by the constitutional protections against double jeopardy.

And that my friend’s is the yin and yang, the bada and the bing!

Obviously, this case was EXTREMELY fact sensitive and took a very skilled attorney to catch Sikla’s ticket’s fatal flaws!

For more information about Ohio OVI Law, please check-out my website www.daytonduilaw.com

Back in my days of law school, my contracts professor would state over and over and over to the class that each case is about the FACTS!  The facts are so important, that he believed law school should be called facts school, since facts drive a case and law is secondary.

Well, as much as I hated contracts, this professor is 110% correct when it comes to the facts in an OVI case.  The facts can and will change the outcome of an OVI case, even when the case is a very close call.  With that, let’s take a walk down the beer aisle and discuss a close call with State v. Hall, 2016-Ohio-5787.

In Hall, Hall was driving his motor vehicle around the witching hour of 1:30 a.m., when he decided to make a left hand turn onto another street.  Unfortunately for Hall, there was a Trooper, who no doubt was just itching for an OVI arrest that night, observing him when he made that left hand turn.  And wouldn’t you know, according to the Trooper, Hall went over the double yellow lines.  Upon the Trooper activating his overhead lights, Hall immediately pulled over and waited for further instructions from the Trooper.

While the Trooper was talking with Hall, he detected an odor of alcoholic beverage emanating from the interior of the vehicle.  The Trooper also noticed an odor of marijuana, as well as Hall’s eyes being red, watery, and bloodshot.  Well, based on the odor of alcoholic beverage, odor of marijuana, and glassy bloodshot eyes, the Trooper ordered Hall out of his vehicle to conduct field sobriety tests.

Hall does not do so well on the field sobriety tests, and is subsequently arrested.  Calling shenanigans, Hall takes this to a motion to suppress and ultimately to the appellate court.  Hall’s goal was to either suppress the initial stop or being detained for field sobriety tests.  There was some good analysis of the initial stop, but the appellate court found that the initial stop was good.  So, I am going to concentrate on the Trooper’s detainment of Hall for field sobriety testing.

To start off, requiring a driver to submit to a field sobriety test constitutes a seizure under the Fourth Amendment, but courts generally hold that the intrusion on the driver’s liberty resulting from a field sobriety test is minor, and the officer therefore only needs reasonable suspicion that the driver is under the influence of alcohol in order to conduct a field sobriety test.  State v. Knox, 2006-Ohio-3039.

So what would constitute reasonable suspicion for field sobriety test(s)?  Courts have held that “where a non-investigatory stop is initiated and the odor of alcohol is combined with glassy or bloodshot eyes and further indicia of intoxication, such as an admission of having consumed alcohol, reasonable suspicion exists.”  State v. Wells, 2005-Ohio-5008

To make this easier, I am going to list impairment clues in the Trooper’s favor and non-impairment clues in Hall’s favor.

Trooper

1)         Odor of alcohol beverage emanated from Hall’s car

2)         Odor of alcohol beverage on Hall’s person

3)        Red eyes

4)        Watery eyes

5)        Bloodshot eyes

6)        Traffic infraction

Hall

1)        Carried on a basic conversation with Trooper regarding his fishing pastime

2)        Carried on a basic conversation while obtaining his standard driver’s paperwork

3)        Did not slur his speech

4)        Did not fumble his wallet

5)        Did not stumble upon exiting his vehicle

6)        Did not sway upon exiting his vehicle

7)        Understood the requests to walk to the Trooper’s cruiser for a pat-down

8)        DID NOT ADMIT TO ALCOHOL USE!!

9)        Traffic violation was for a marked lane violation during a left turn, without speeding or swerving.

With the above, the appellate court found that the initial traffic stop was permissible, but there was no reasonable basis for the Trooper to ask Hall to step out and participate in field sobriety testing.

Facts! Facts! Facts!  Most might have thought this case was a loser based on the typical odor of alcohol with red, watery, bloodshot eyes!  But it is all about the facts!  Look how many great facts Hall had to show he was not impaired!

Another example of what an experienced OVI attorney can do for you when you believe all hope is lost in your OVI case!

Alright, it has been a couple days since my last posting about Juvenile OVI conviction and I promised a follow up to discuss uncounseled Juvenile OVI convictions.  Knowing that you are all just chomping at the bit, let’s get this analysis going!

But, before jumping right into it, let’s do a quick recap about Juvenile OVI convictions and enhanceability.

As I discussed in my last amazing blog, R.C. 4511.19(G) lays out the sentencing structure for individuals who have been previously convicted of OVIs.  However, in State v. Adkins, 2011-Ohio-3141, the Ohio Supremes found that R.C. 2901.08 provides that an offender’s juvenile adjudication for delinquency is a conviction for purposes of determining the sentence to be imposed for a later offense.  Thus, juvenile adjudications can be counted under R.C. 4511.19(G) for sentencing purposes. Id.

Okay, now that is out of the way, we shall now move forward on our legal journey.

In State v. Bode, 2015-Ohio-1519, the Ohio Supremes took a look at if an uncounseled Juvenile OVI adjudication can be used to enhance penalties for an adult conviction for OVI under R.C. 4511.19(G)(1)(d).

In Bode, Bode was facing a felony OVI for having five previous OVI convictions within the past twenty years.  One of those convictions was a 1992 uncounseled Juvenile OVI adjudication.  Bode argued that this adjudication cannot be used against him for enhanceability purposes.  Well, good thing for Bode, the Ohio Supremes agreed.

After going through a very lengthy analysis (which I won’t bore you with), the Ohio Supremes ultimately hold that the due process protects the right to counsel for juveniles at every state of the proceedings.  The Ohio Supremes went on to state that the possibility of confinement as a disposition for juvenile adjudication requires waiver of the right to counsel by the juvenile before the adjudication may be validly used as an enhancement offense under R.C. 4511.19.

Lastly, and going for the big finish, the Ohio Supremes stated “just like for adults in State v. Brooke, 2007-Ohio-1533, we hold that for juveniles, the state may not use a prior, uncounseled delinquency adjudication to enhance a sentence for a later violation of R.C. 4511.19 if the right to counsel was violated because an appropriate waiver was not obtained.”

Outstanding!

And just as I stated in the previous blog article, this shows the importance of talking with an experienced DUI/OVI attorney to help explain how even a juvenile OVI adjudication or an underage OVI conviction can come back to haunt an individual.

A couple days ago, my good friend and drinking buddy were discussing OVI convictions as they relate to juveniles.  Before you start judging me over my conversation choices, my friend is an OVI attorney as well and we talk about this crap all the time.  It is all we have, so please…no judging!

In any event, the main conversation dealt with sealing and ultimately expunging a juvenile traffic violation.  In juvenile court, a juvenile traffic offender is eligible for sealing his record six months after the last contact with the court and is eligible for expungement five years after his last contact with the court.  Obviously, my buddy wanted to make sure that his juvenile client’s traffic record of an OVI could be sealed and expunged.  This is smart lawyering on my buddy’s part because an OVI out of the juvenile court can and will count for OVI enhanceability purposes.

Annnnnnnnd I can feel you rolling your eyes over reading that above paragraph.  What the hell are you talking about Kopacz?!?

Well, for all you non-OVI geeks out there, OVI is an enhanceable offense in the great state of Ohio.  Meaning, the more OVI convictions a person has the stiffer the penalties are for each subsequent OVI citation.  For example, a person that was convicted of their first OVI in 2014 and is cited for an OVI in 2016 will now face a harsher mandatory sentencing scheme if convicted of their second OVI within a six year period.

Key word in the above example is conviction.  In the juvenile court world, a juvenile is consider an offender not a defendant and is adjudicated delinquent rather than convicted.  To make things even more fun, a juvenile offender admits to a violation of the law rather than entering a guilty plea.  The reasoning behind this is because a juvenile court proceeding is a civil action instead of a criminal case.

Offender…defendant, adjudicated delinquent….convicted, gold jacket….green jacket who gives a shit right?

R.C. 4511.19(G) lays out the sentencing structure for individuals who have been previously convicted of OVIs.  Once again, keyword convicted, not adjudicated delinquent!   However, in State v. Adkins, 2011-Ohio-3141, the Ohio Supremes found that R.C. 2901.08 provides that an offender’s juvenile adjudication for delinquency is a conviction for purposes of determining the sentence to be imposed for a later offense.  Thus, juvenile adjudications can be counted under R.C. 4511.19(G) for sentencing purposes. Id.

Once again, this shows the importance of talking with an experienced DUI/OVI attorney to help explain how even a juvenile OVI adjudication or an underage OVI conviction can come back to haunt an individual.

In part two of this blog article, I will talk about uncounseled juvenile OVI adjudications may just save a person’s backside for purposes of OVI enhanceability!