2015 Annual Convention. Traffic Law Update: Is Implied Consent Constitutional and Examining the Breath Machine at the Police Station

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1 2015 Annual Convention Traffic Law Update: Is Implied Consent Constitutional and Examining the Breath Machine at the Police Station Traffic Law Committee 1.5 General CLE Hours April 29 May 1, 2015 Sandusky

2 Speaker Biographies Terrence R. Rudes Rudes Law Office Port Clinton, Ohio Mr. Rudes received his BA from The University of Toledo and his JD from The University of Toledo College of Law. His professional memberships include the Ohio State Bar Association, Ohio Association of Criminal Defense Lawyers, and National Association of Criminal Defense Lawyers. Mr. Rudes is a solo practitioner and focuses his practice on OVI defense, including trials and appeals. He has attended specialized training and was certified in Standardized Field Sobriety Testing in Mr Rudes attended three days of factory training at National Patient Analytical Systems, Inc. on the DataMaster line of breath testing devices, as well as numerous national DUI seminars. He is a frequent presenter on OVI-related topics for several organizations across Ohio. For additional information, please visit Joseph D. Hada Saia & Piatt, PLL Mayfield Heights, Ohio Mr. Hada received his BA from Heidelberg College and his JD from Cleveland State University Cleveland- Marshall College of Law. His professional memberships include the Cleveland Metropolitan Bar Association, Cuyahoga Criminal Defense Lawyers Association, Geauga County Bar Association, Lake County Bar Association, Ohio State Bar Association, Lake County Criminal Defense Lawyers Association (Founding Member), and Ohio Association of Criminal Defense Lawyers. Mr. Hada is an associate attorney with his firm and has dedicated his practice to OVI/DUI, criminal, and traffic defense. As a former public defender, he has a wealth of experience in defending OVI/DUI, Criminal and Traffic charges from arraignment through trial. Mr. Hada is a frequent speaker at seminars on the topic of OVI/DUI Defense and continues to research and pursue innovative defenses for his clients. For additional information, please visit

3 Terrence R. Rudes Rudes Law Office Port Clinton, Ohio Chapter 1: Implied Consent: Is It Unconstitutional? Table of Contents History... 1 A. Schmerber v. California (1966), 384 U.S. 757, 86 S.Ct. 1826, 16 L. Ed. 2d B. State v. Hoover, 123 Ohio St. 3d 418, 2009-Ohio C. New paradigm D. The game changer E. What is not in the majority opinion Issues and Authority... 2 A. A chemical test is a search B. Exception to warrant requirement that do not apply Use of Exercise of a Constitutional Right Against a Defendant... 5 Chilling of Exercise of Constitutional Right... 6 Missouri v. McNeely... 9 Implied Consent: Is It Unconstitutional? i

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5 Terrence R. Rudes Rudes Law Office Port Clinton, Ohio Chapter 1: Implied Consent: Is It Unconstitutional? History A. Schmerber v. California (1966), 384 U.S. 757, 86 S.Ct. 1826, 16 L. Ed. 2d Elimination of alcohol from the body, under the facts of this case, established an exigent circumstance that is an exception to the warrant requirement. 2. Determination of exigent circumstances is to be made on a case by case basis B. State v. Hoover, 123 Ohio St. 3d 418, 2009-Ohio { 18} Section , Revised Code, does not violate the search and seizure provision of the Fourth Amendment, nor the self-incrimination clause of the Fifth Amendment to the United States Constitution by providing that any operator of a motor vehicle upon the public highways in this state shall be deemed to have given consent to a chemical test to determine the alcoholic content of his blood if arrested for the offense of driving while under the influence of alcohol. (Schmerber v. California [1966], 384 U.S. 757 [86 S.Ct. 1826, 16 L.Ed.2d 908]; Westerville v. Cunningham [1968], 15 Ohio St.2d 121 [44 O.O.2d 119, 239 N.E.2d 40], applied.) { 19} The United States Supreme Court has held that if an officer has probable cause to arrest a driver for DUI, the result of an analysis of a blood sample taken over the driver's objection and without consent is admissible in evidence, even if no warrant had been obtained. Schmerber v. California (1966), 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908. The court noted that delaying the test to get a warrant would result in a loss of evidence. Id. at , 86 S.Ct. 1826, 16 L.Ed.2d 908. Following Schmerber, we held that [o]ne accused of intoxication has no constitutional right to refuse to take a reasonably reliable chemical test for intoxication. Westerville v. Cunningham (1968), 15 Ohio St.2d 121, 44 O.O.2d 119, 239 N.E.2d 40, paragraph 2 of the syllabus. Implied consent statutes have been passed in all 50 states and the District of Columbia. Legislative elimination of a constitutional right. Implied Consent: Is It Unconstitutional? 1.1

6 C. New paradigm. The implied consent law does not eliminate the requirement of a search warrant in OVI cases, neither does the fact of dissipation of alcohol from the body create an exigent circumstance exception to a search warrant. The argument below, based on Missouri v. McNeely (2013) 569 U.S., 133 S. Ct. 1552, 185 L.Ed.2d 696, requires this court to reexamine decades of precedent regarding chemical testing in the OVI context and the application of Article I 14 of the Ohio Constitution and the U.S. Constitution s Fourth Amendment protections. After McNeely, decades of preexisting case law on chemical testing consent is no longer valid precedent. Just as other landmark cases like Miranda v. Arizona, Mapp v. Ohio, Terry v. Ohio, reversed decades of existing precedent law on self-incrimination and right to counsel, application of the exclusionary rule to the states, and citizen restraint by police, McNeely has changed the existing implied consent and OVI law. D. The game changer. 1. Missouri v. McNeely (2013), 569 U.S., 133 S. Ct. 1552, 185 L. Ed. 2d Schmerber is affirmed. Exigent circumstances are determined on a case-by-case basis. 3. Blanket exemptions or rules are not allowed. 4. Elimination of alcohol from the body is not an exigent circumstance. 5. Advances in communication capability makes warrants faster to obtain. E. What is not in the majority opinion. Implied consent statutes were mentioned, but the majority did not approve them as an exception to the warrant requirement. Justice Roberts would find exigent circumstances in most cases. Issues and Authority A. A chemical test is a search. Schmerber v. California (1966), 384 U.S. 757, 86 S. Ct. 1826, 16 L. Ed. 2d 908. See also State v. Hoover, 123 Ohio St. 3d 418, 2009-Ohio-4993, 916 N.E.2d 1056 (Ohio 2009); State v. Sweinhagen (Nov. 7, 1989), 3d Dist. No , 1989 Ohio App. LEXIS McNeely held that absent an emergency a defendant has the right to insist on a warrant before submitting to a test. Schmerber at 770, 86 S. Ct McNeely, Id., 133 S. Ct. 1552, 1558, quoting Schmerber infra. The implied consent statute is only invoked where the person has first been arrested and is in custody. Being in custody, with the search incident to arrest police have the time to get a search warrant, like searching a cell phone or a car in impound. Breath and urine tests are treated the same as blood. (Cited in McNeely) Skinner v. Railway Labor Executives Ass n, 489 U.S. 602, 603, 618, 109 S. Ct. 1402, 1405, 103 L.Ed.2d 639 (1989). 1.2 Traffic Law Update

7 (b) The collection and subsequent analysis of the biological samples required or authorized by the regulations constitute searches of the person subject to the Fourth Amendment. This Court has long recognized that a compelled intrusion into the body for blood to be tested for alcohol content, and the ensuing chemical analysis, constitute searches. Similarly, subjecting a person to the breath test authorized by Subpart D must be deemed a search, since it requires the production of "deep lung" breath, and thereby implicates concerns about bodily integrity. Moreover, although the collection and testing of urine [109 S.Ct. 1406] under the regulations do not entail any intrusion into the body, they nevertheless constitute searches, since they intrude upon expectations of privacy as to medical information and the act of urination that society has long recognized as reasonable. Even if the employer's antecedent interference with the employee's freedom of movement cannot be characterized as an independent Fourth Amendment seizure, any limitation on that freedom that is necessary to obtain the samples contemplated by the regulations must be considered in assessing the intrusiveness of the searches affected by the testing program. Pp B. Exception to warrant requirement that do not apply. Any blanket exception created by legislature that is not based on a case-by-case analysis. Missouri v. McNeely, 133 S. Ct. 1552, 185 L. Ed. 2d 696 (2013). Exigent circumstances of run of the mill OVI stop/arrest. Missouri v. McNeely, 133 S. Ct. 1552, 185 L. Ed. 2d 696 (2013). Natural elimination of alcohol over time is not an exigent circumstance. Implied consent statutes constitutes an illegal legislative attempt to nullify a constitutional right: Missouri v. McNeely, 133 S. Ct. 1552, 185 L.Ed.2d 696 (2013). Consent because defendant submitted on misinformation: State v. Brunty, 2014-Ohio-4307, 11th Dist., { 14} defendant s consent to blood draw was not voluntarily given as he had been threatened with the use of force for obtaining a test; also City of Berea v. Collins, 2014-Ohio-3822; State v. Cross, 2014-Ohio State v. King, 1st Dist. No. C , 2003-Ohio-1541, at 24 (citation omitted). In the context of consensual searches and seizures, the state is required to demonstrate that the consent was in fact voluntarily given, and [was] not the result of coercion, express or implied. Voluntariness is a question of fact to be determined from all the circumstances. Schneckloth v. Bustamonte (1973), 412 U.S. 218, , * * *. (Parallel citations omitted.) State v. Hatfield, 11th Dist. Ashtabula No A-0033, Ohio-7130, 111. U.S. v. Weidul, 325 F.3d 50, 54 (1st Cir. 2003), consent to search not voluntary though resident said okay because officer s statement that he was going to search laundry room was a claim of lawful authority; Trulock v. Freeh, 275 F.3d 391, 402 (4th Cir. 2001), consent to search not voluntary because suspect was falsely told FBI already had search warrant; U.S. v. Escobar, 389 F.3d 781, 786 (8th Cir. 2004), consent to search not voluntary because officer falsely informed suspect that drug-sniffing dog positively identified presence of drugs in suspect s luggage; U.S v. Stephens, 206 F.3d 914, (9th Cir. 2000), consent to search not voluntary because officers conveyed message that Implied Consent: Is It Unconstitutional? 1.3

8 compliance by defendant was required; Camfield v. City of Oklahoma City, 248 F.3d 1214, 1233 (10th Cir. 2001), consent not voluntary if made in acquiescence to claim of lawful authority or misrepresentation of lawful authority. Search incident to arrest. McNeely, id., 133 S. Ct. 1552, Constitution applies to ALS administrative searches. Westlake v. Gerber, 2011-Ohio-114, 8th Dist., Cuyahoga, citing Watford v. Ohio Bur. of Motor Vehicles (1996), 110 Ohio App. 3d 499, 674 N.E.2d 776, this court stated that a lawful arrest, including a constitutional stop, must take place before a refusal to submit to chemical tests of one s blood, breath, urine or other bodily substances triggers a license suspension. Id., citing Williams v. Ohio Bur. of Motor Vehicles (1992), 62 Ohio Misc. 2d 741, 610 N.E.2d Warrantless searches are per se unreasonable unless one of the enumerated exceptions to the warrant requirement applies. State v. Kessler, 53 Ohio St. 2d 204, 207, 373 N.E.2d 1252 (1978); Katz v. United States, 389 U.S. 347, 357, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967); Missouri v. McNeely, 569 U.S., 133 S. Ct at 1558 (2013). The burden is on the state to establish that a warrantless search is valid under one of those exceptions. City of Xenia v. Wallace, 37 Ohio St. 3d 216, 218, 524 N.E.2d 889 (1988). States that have held their implied consent laws unconstitutional. Since the McNeely decision, four states have declared their implied consent laws unconstitutional. In Byars v. State (2014), 336 P.3d 939, the Nevada State Supreme Court held that Nevada s Implied consent statute was unconstitutional because it allowed officers to conduct a search without a warrant, valid consent, or another exception to the warrant requirement. State v. Wulff (2014), 337 P.3d 575 the Idaho State Supreme Court held that Idaho s implied consent statute was unconstitutional because Idaho s implied consent statute is an unconstitutional per se exception to the warrant requirement. Colorado v Schaufele, 325 P.3d 1060 (Colo. 2014), Supreme Court of Colorado, en banc. [ 3] We affirm the trial court s suppression order. We hold that the trial court properly adhered to Missouri v. McNeely, 133 S. Ct. 1552, 185 L.Ed.2d 696 (2013), in suppressing evidence of Schaufele s blood draw. We reject the People s invitation to disregard the majority opinion in McNeely, which instructs a trial court to consider the totality of the circumstances, and to adopt instead Chief Justice Roberts s concurring and dissenting opinion that a warrantless blood draw may ensue if an officer could reasonably conclude that there is not sufficient time to seek and receive a warrant. Id. at 1573 (Roberts, C.J., concurring in part and dissenting in part). The highest criminal court in Texas followed McNeely in Texas v Villarreal, No. PD , (no SW cite available) Court of Criminal Appeals of Texas, Nov. 26, 2014, stating: In addressing the merits of the State's challenge to the trial court's ruling, we conclude that the warrantless, nonconsensual testing of a DWI suspect's blood does not categorically fall within any recognized exception to the Fourth 1.4 Traffic Law Update

9 Amendment's warrant requirement, nor can it be justified under a general Fourth Amendment balancing test. Accordingly, we hold that the search in this case violated the Fourth Amendment. Weems v. State, 434 S.W.3d 655 Tex. Court of Appeals, 4th Dist. 2014,, held that the implied consent statute did not eliminate the Fourth Amendment search warrant requirement, that the officer did not act in good faith as the implied consent law did not provide that a search warrant was not needed, and that the good faith exception to suppression only applies to search warrants where the facts had been previously reviewed by a neutral magistrate or judge. Statutory provisions for obtaining hospital chemical test results unconstitutional as applied. Ohio Rev. Code and.022. State v. Little, 2014-Ohio-4871, 3d Dist. Auglaize County, the court held that an OVI suspects expectations of privacy are not to be diminished easily, citing Missouri v. McNeely, 133 S. Ct. 1552, 185 L.Ed.2d 696 (2013). See also State v. Clark, 2014-Ohio- 4873, 3d Dist., Hancock County. Use of Exercise of a Constitutional Right Against a Defendant A prosecutor cannot argue or introduce evidence of the exercise of a Constitutional Right. Doyle v. Ohio, 426 U.S. 610, 96 S. Ct (1976) and Griffin v. California, 280 U.S. 609, 85 S. Ct (1965); U.S. v. Hale, 422 U.S. 171, 95 S. Ct. 2133, 45 L. Ed. 2d 99 (1975); U.S. v. Moore, 104 F.3d 377, 46 Fed. R. Evid. Serv. 250 (D.C. Cir. 1997); U.S. v. Boyd, 620 F.2d 129, 5 Fed. R. Evid. Serv (6th Cir. 1980); Williams v. Zahradnick, 632 F.2d 353 (4th Cir. 1980); Franklin v. Duncan, 70 F.3d 75 (9th Cir. 1995). A person has an absolute right to refuse consent to an entry and search, and the assertion of that right cannot be a crime. State v. Scott M., 135 Ohio App. 3d 253, N.E.2d 653 (6th Dist. Erie Cty. 1999). Defendant s failure to testify on his or her own behalf. Griffin v. California, 380 U.S. 609, 615, 85 S. Ct. 1229, 14 L.Ed.2d 106 (1965); State v Sargent, 169 Ohio App. 3d 679, 683, 2006-Ohio-6823; State v Rogers (1987), 32 Ohio St. 3d 70; State v lynn (1966), 5 Ohio St. 2d 106.f Fagundes v. United States, 340 F.2d 673 (1965). There the court said: * * * Thus when Fagundes said when he was arrested and handcuffed that he wanted to see a lawyer he was exercising a federal constitutional right. And certainly at that juncture he had the constitutional right to keep silent. * * * His assertion of one constitutional right, his right to counsel, and his reliance upon another constitutional right, his right to remain silent when charged with crime, we think cannot be used against him substantively as an admission of guilt, for to do so would be to render the constitutional rights mere empty formalities devoid of practical substance. * * * (p.677.) United States v. Prescott, 581 F.2d 1343 (9 Cir. 1978) cannot be a crime for a person to refuse entry to premises to cop who does not have a warrant. State v. Brunty, 2014-Ohio-4307, 11th Dist., defendant s consent to blood draw was not voluntarily given; City of Berea v. Collins, 2014-Ohio-3822; State v. Cross, Ohio Implied Consent: Is It Unconstitutional? 1.5

10 The Ninth District Court of Appeals has held that refusing to cooperate with a law enforcement officer is not punishable conduct. State v. McCrone (1989), 63 Ohio App. 3d 831, at 471; Patrizi v. Huff, 690 F.3d 459 (6th Cir. 2012). Refusing to consent to a search without a warrant is not an offense. Camara v. Municipal Court, 387 U.S. 523, 87 S. Ct. 1727, 18 L. Ed. 2d 930 (1967), and See v. City of Seattle, 387 U.S. 541, 87 S. Ct. 1737, 18 L. Ed. 2d 943 (1967). Both cases dealt with statutes/ordinances that criminalized the right to refuse a warrantless search. Both cases found such laws unconstitutional. If you cannot criminalize the exercise of Fourth Amendment rights, you most assuredly cannot impose a sanction, even an administrative sanction based upon the exercise of those rights. Chilling of Exercise of Constitutional Right The U.S. Supreme Court addressed the chilling effect under the Fifth and Sixth Amendments in U.S. v. Jackson, 390 U.S. 570 (1968). In Jackson, the federal kidnaping statute provided that if a defendant charged with that offense plead guilty, he could not face the death penalty. However, if a defendant elected to exercise his right to a plead not guilty under the Fifth Amendment, and exercise his right to a trial under the Sixth Amendment, the jury could impose the death penalty. The Court found this provision unconstitutional, and held: Under the Federal Kidnaping Act, therefore, the defendant who abandons the right to contest his guilt before a jury is assured that he cannot be executed; the defendant ingenuous enough to seek a jury acquittal stands forewarned that, if the jury finds him guilty and does not wish to spare his life, he will die. Our problem is to decide whether the Constitution permits the establishment of such a death penalty, applicable only to those defendants who assert the right to contest their guilt before a jury. The inevitable effect of any such provision is, of course, to discourage assertion of the Fifth Amendment right not to plead guilty and to deter exercise of the Sixth Amendment right to demand a jury trial. If the provision had no other purpose or effect than to chill the assertion of constitutional rights by penalizing those who choose to exercise them, then it would be patently unconstitutional. But, as the Government notes, limiting the death penalty to cases where the jury recommends its imposition does have another objective: It avoids the more drastic alternative of mandatory capital punishment in every case. In this sense, the selective death penalty procedure established by the Federal Kidnaping Act may be viewed as ameliorating the severity of the more extreme punishment that Congress might have wished to provide. The Government suggests that, because the Act thus operates to mitigate the severity of punishment, it is irrelevant that it "may have the incidental effect of inducing defendants not to contest in full measure." We cannot agree. Whatever might be said of Congress' objectives, they cannot be pursued by means that needlessly chill the exercise of basic constitutional rights. Cf. United States v. Robel, 389 U.S. 258 ; Shelton v. Tucker, 364 U.S. 479, The question is not whether the chilling effect is "incidental" rather than intentional; the question is whether that effect is unnecessary and therefore excessive. In this case the answer to that question is clear. The Congress can of course mitigate the severity of capital punishment. The goal of limiting the death penalty to cases in which a jury recommends it is an entirely legitimate one. But that goal can be achieved without 1.6 Traffic Law Update

11 penalizing those defendants who plead not guilty and demand jury trial. In some States, for example, the choice between life imprisonment and capital punishment is left to a jury in every case - regardless of how the defendant's guilt has been determined. Given the availability of this and other alternatives, it is clear that the selective death penalty provision of the Federal Kidnaping Act cannot be justified by its ostensible purpose. Whatever the power of Congress to impose a death penalty for violation of the Federal Kidnaping Act, Congress cannot impose such a penalty in a manner that needlessly penalizes the assertion of a constitutional right. See Griffin v. California, 380 U.S [emphasis added]. Implied Consent: Is It Unconstitutional? 1.7

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61 Chapter 2: Investigating the Breath Machine Joseph D. Hada Saia & Piatt, PLL Cleveland, Ohio Table of Contents Presentation Web Link... 1 Breath Machine Investigation Checklist... 3 Traffic, the ugly Ilg case and more... 5 Investigating the Breath Machine i

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63 Chapter 2: Investigating the Breath Machine Joseph D. Hada Saia & Piatt, PLL Cleveland, Ohio Presentation Web Link Investigating the Breath Machine 2.1

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65 Breath Machine Investigation Checklist Investigating the Breath Machine 2.3

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67 Judge Ken Spanagel Parma Municipal Court April 30, 2015 Traffic, the ugly Ilg case and more Cincinnati vs. Ilg, 2014-Ohio-4258: Ohio SC ruled that Defendant is entitled to Discovery as to the accuracy of the test machine (here, an 8000). You cannot make a general attack on the reliability of the machine, but you are entitled to discovery of that particular machine as to accuracy of THAT machine. Vega is clarified? Or overruled?? Other recent cases of Note: Lack of Reasonable Suspicion of any crime: State vs. Dukes, 2 nd Dist Ohio-1691:vehicle was on city s tow list to tow on sight-plain view items led to what was a bad search. Defendant was not stopped for any crime other than that State vs. Paseka, 6 th Dist., 2013-Ohio-2363: on Route 6- deft has option to veer left on 6 or go straight. He went straight ahead and was cited for not using his turn signal. It was not an intersection so no duty to signal. State vs. Whitaker, 6 th Dist Ohio-2220: Anonymous tip of intoxicated ladies in Red vehicle behind Checkers Bar with children. Police stop while in parking lot. Dash cams not determinable. Seizure not justified, as there was no evidence of criminal activity. State vs. Jarosz, 11 th Dist., 2014-Ohio-5839: reason for stop was speeding. Officer testified visual estimate of in excess of 45 mph tried pacing for 12 seconds and claimed 48 in a 40 zone. Dash cam did not corroborate testimony-equal distance not maintained for pacing. State vs. Harper, 9 th Dist, 2014-Ohio-347: Deft charged with following a tractor trailer too close. Dash cam contradicted officer testimony. Video showed no vehicle in lane other than deft and trooper, and although he claimed he was stationary when he saw violation, dash cam showed he was already behind the defendant in motion. Mistake of Law not justifying Traffic Stop: State vs. Babcock, 6 th Dist, 2013-Ohio-2366: Deft made U-turn prior to coming to stop line of red light, and charged with red light violation. Officer was mistaken as to fact, not law. Also note BG case of Goodwin, which was also in Bowling Green and was car pulling out of entrance from exit in parking lot Investigating the Breath Machine 2.5

68 State vs. Drushal, 9 th Dist., 2014-Ohio-3088:Deft violated (?) stop at(?) a clearly marked stop line. VC/A said that is ambiguous- at in dictionary means in, on, or near. Fog Line and over the line: State vs. Marcum, 5 th Dist, 2013-Ohio-2632: though dash cam did not show movement over line, Officer had no doubt some portion crossed over yellow line. C/A said judge was correct that no evidence vehicle went over yellow line. M driving on, but not over yellow line is not a violation State vs. Parker, 6 th Dist., 2013-Ohio-3470: lane violation. C/A said no dash cam or evidence deft ever crossed over the line of travel before stop. Though sometimes on the line, was never over the line State vs. Ross, 9 th Dist., 2013-Ohio-1488: OVI dismissed, marked lanes violation appealed. Dash cam shows no other cars on road and no movement over lines State vs. Shaffer, 3 rd Dist., 2013-Ohio-3581:car his fog line at 3 A.M. for maybe 3 seconds. C/A said without more evidence, it could not find a fog live violation Informants and Cell Phone Calls: State vs. Hipp, 5 th Dist Ohio-1684:Gas Station attendant phoned 911, with only make, model, and plate, and observation of odor of alcohol on defendant She was stopped at ATM. Though a reliable informant, insufficient information for reasonable suspicion to stop for OVI Motion to Suppress-Procedural Requirements: State vs. Codeluppi, 139 Ohio St. 154, 2014-Ohio-Court denied MTS without hearing on stop and Homan issues, stating that deft failed to aver sufficient particularity for Motion to go forward. Leqal and factual basis must be stated, and this Motion was sufficient to merit a Hearing. The Defendant must put the ball in play ALS Appeal Issues: State vs. Harding, 7 th Dist., 2014-Ohio-884:ALS form failed to state the reason for arrest, as in the reason for the stop-allegations of alcohol are not enough. State vs. Brown, 12 th Dist., 2013-Ohio-4981: ALS Appeal on alleged refusal of test was ruled in favor of Defendant. Defendant could not perform! Defendant could not urinate, despite several glasses of water given by police. Inability to perform is not the same as unwillingness to perform!! 2.6 Traffic Law Update

69 OTHER APPELLATE CASES OF NOTE-8 TH DISTRICT CASES Berea vs. Collins, 2014-Ohio-3822: denial of MTS reverses. Officer saw Deft speeding, followed and he pulled into private drive. Deft then said he would put guitar case on porch- odor detected, but Deft. Went into house and locked door, and would not open. Cop forced way into house. The officers were not, as they claimed, in hot pursuit of Defendant, and even if exigent circumstances, no probable cause to arrest. Cleveland vs. Jones, 2014-Ohio-4201: Court amended OVI to Phyiscal control on its own over objection of Prosecutor. Court laced to authority to amend over prosecutors objection. Lakewood vs. Armstrong, 2014-Ohio-4219: Judge Stupica in Chardon granted driving privileges, which Lakewood Judge found sua sponte invalid because of terms (24/7 privilege) Judge cannot sua sponte find the other Court s Order to be invalid. Highland Hills vs. Nicholson, 2014-Ohio-4671:visiting Judge removed appointed counsel and directed Deft to file a Motion explaining why he wanted to represent himself, which he did not do. Conviction was found to be valid but was reversed and remande3d for resolving counsel and pro se issues. Cleveland vs. Ismail, 2014-Ohio-1080: conviction for full time and attention reversed on cell phone usage. There was no evidence that she failed to reasonably control her vehicle as a result of cell phone usage. NOTE: This is a FTA case, not a cell phone ordinance violation. State vs. Klembus, 2014-Ohio-1830: On a felony OVI, which also included what is known as a repeat OVI offender specification, C/A said that repeat OVI offender specification was unconstitutional. OTHER DISTRICTS RECENT TRAFFIC CASES: State vs. Cross, 2014-Ohio-1046, 4 th Dist.: On another driveway hot pursuit case, C/A found a close case, but reversed and remanded on denial of MTS (deft wewnt into garage, and inside and may have been ordered to stop by officer). State vs. Baker, 2014-Ohio-2873, 11 th Dist: Blood draw at 1:50 A.M., mailed at 6:00 A.M. and not refrigerated in the interim C/A affirmed granting of MTS of blood result, finding that time frame was not a de minimus violation of ODH regulations. State vs. Ali, 2014-Ohio-3757, 6 th Dist: Granting of MTS affirmed by C/A. based upon dash cam and officer s testimony, no evidence of a marked lanes violation. State vs. Barzacchini, 2014-Ohio-3467, 5 th Dist: C/A reversed denial of MTS. Officer observed loud audio, audible noise, screaming, etc. from vehicle as it passed, but no moving violations. Mama B arrived home and said they had argument, and noise and motions were probably the result of that. C/A found no reasonable suspicion of traffic violation, and not sufficient evidence to invoke community caretaking function on Deft. Investigating the Breath Machine 2.7

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