961 N.E.2d 738 (Ohio Mun. 2011), 5911-2010-TRC-1328, State v. Thomas

Docket Nº:5911-2010-TRC-1328.
Citation:961 N.E.2d 738, 166 Ohio Misc.2d 5, 2011-Ohio-6921
Opinion Judge:McCLELLAND, Judge.
Party Name:The STATE of Ohio v. THOMAS.
Attorney:Steve Phillips, for plaintiff. Earl Desmond, for defendant.
Case Date:February 28, 2011
Court:Municipal Court of Ohio

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961 N.E.2d 738 (Ohio Mun. 2011)

166 Ohio Misc.2d 5, 2011-Ohio-6921

The STATE of Ohio



No. 5911-2010-TRC-1328.

Morrow County Municipal Court, Ohio.

February 28, 2011

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[Copyrighted Material Omitted]

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          Steve Phillips, for plaintiff.

          Earl Desmond, for defendant.

          McCLELLAND, Judge.

         [166 Ohio Misc.2d 8] {¶ 1} Defendant Richard Thomas is charged with operating a motor vehicle under the influence of alcohol in violation of R.C. 4511.19(A)(1)(a) (the " general" charge) and 4511.19(A)(1)(b) (the " prohibited-concentration" charge). The relevant facts are stipulated by the parties as follows.

         {¶ 2} On June 24, 2009, defendant was stopped for failing to maintain control of his vehicle on County Road 59. As a result of the stop, defendant was arrested on the charge of operating a motor vehicle while under the influence of alcohol in violation of R.C. 4511.19(A)(1)(a) (general charge). At defendant's initial appearance on July 2, 2009, he filed a written waiver of speedy trial and entered an oral plea of not guilty. A court trial was scheduled for August 27, 2009. On July 8, 2009, defendant's attorney filed a notice of appearance of counsel, a plea of not guilty, a second time waiver, and a demand for a jury trial. The case was taken out of the court trial assignment, and a jury trial was scheduled for August 27, 2009. The first pretrial was held on September 1, 2009. A second pretrial was requested and, in the interim, defense counsel received the defendant's blood-test lab results of .107 percent of alcohol by weight per unit volume in the defendant's whole blood, a prohibited concentration under R.C. 4511.19(A)(1)(b). The second pretrial was held October 20, 2009. There, an agreed disposition was reached, and defense counsel requested the case be scheduled for supplemental arraignment. In light of the plea agreement, the state did not file the additional prohibited-concentration charge under R.C. 4511.19(A)(1)(b). A supplemental arraignment was scheduled for January 11, 2010. At this supplemental arraignment, defendant withdrew his acceptance of the plea agreement, and the jury trial was rescheduled.

          {¶ 3} Shortly after the failed supplemental arraignment, the state filed the prohibited-concentration charge on March 2, 2010. Jury trial was again set for March 31, 2010, but was continued by the state due the unavailability of the state's criminalist. The matter was then continued and set for jury trial on May 5, 2010. Defense counsel responded with a notice of appearance, demand for jury trial, and a time-not-waived motion [sic] on April 1, 2010. A pre-jury-trial pretrial was held on May 4, 2010. At this pre-jury-trial pretrial, defendant moved to dismiss the prohibited-concentration charge due to violation of speedy-trial [166 Ohio Misc.2d 9] rights based upon the time from the initial arrest on June 24, 2009. The state opposed the motion on the basis that the blood-test result constituted an additional fact unknown to the state at the time of the initial, general charge, arguing that the state was therefore entitled to a new time limit during

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which to prosecute the subsequent charge. Thus, the defendant's speedy-trial rights were not violated. This court requested supplemental briefs to be filed on this issue. The parties agreed to toll the time regarding the prohibited-concentration charge while the motion was under consideration and agreed to file supplemental briefs. The state filed its brief on May 20, 2010. Defendant has yet to file a supplemental brief.

          {¶ 4} As a procedural matter, this court notes that the proper motion to challenge a speedy-trial violation is a motion to discharge and not a motion to dismiss. Upon a motion made at or prior to trial, a person will be discharged if not brought to trial within speedy-trial time. R.C. 2945.73(B). In speedy trial, dismissals apply to preliminary hearings only. A felony is dismissed when a defendant does not receive a preliminary hearing within the time limits of R.C. 2945.71 and 2945.72. R.C. 2945.73(A). Further criminal proceedings are barred only when a defendant is discharged. R.C. 2945.73(D). This court would be correct to deny defendant's motion because the motion is improper; however, it will proceed to consider the case on its merits.

         {¶ 5} At issue in this case is whether a blood-test result from a chemical test taken at the time of defendant's initial arrest constitutes a fact unknown to the state at the time defendant was charged with his initial OVI. Resolution of this issue is crucial in determining whether defendant's speedy-trial rights were violated. In order to determine the statutory time limit that the state has to bring the defendant to trial, it must be determined when the time for each filed charge began to run. To do this, the court must determine whether the state knew of the additional fact(s) necessary for a probable-cause determination for the subsequent prohibited-concentration charge when the initial, general charge was filed. Once the court determines when the statutory time period began to run for each charge, the court must then decide whether the defendant's speedy-trial waiver for the general charge also applies to the prohibited-concentration charge.

          {¶ 6} The Ohio Supreme Court does not provide a clear path for the trial courts to follow when analyzing dual-filing issues. This court asserts that there are two basic principles in analyzing a case involving dual filings. First, the Fourth Amendment to the United States Constitution and Section 14, Article I of the Ohio Constitution require that all arrest warrants be supported by probable cause. See State v. Sizer (C.P.1970), 25 Ohio Misc. 245, 265 N.E.2d 468 (citing Giordenello v. United States (1958), 357 U.S. 480, 78 S.Ct. 1245, 2 L.Ed.2d 1503). [166 Ohio Misc.2d 10] Whether there is probable cause to arrest for a violation of R.C. 4511.19(A)(1)(b) depends upon whether there is sufficient information to cause a prudent person to believe that the defendant was driving with a prohibited alcohol concentration in his or her blood at the time of the arrest. See State v. Schmitt (2004), 101 Ohio St.3d 79, 2004-Ohio-37, 801 N.E.2d 446. Simply stated, after an initial charge is filed, subsequent charges, even those arising under the same circumstances, cannot be filed without the state acquiring all the facts necessary to establish probable cause to file the subsequent charge. Second, time waivers must be filed knowingly, intelligently, and voluntarily. Brady v. United States (1970), 397 U.S. 742, 748, 90 S.Ct. 1463, 25 L.Ed.2d 747. Therefore, a time waiver filed on an initial charge cannot apply to subsequently filed charges. These two principles must be followed in analyzing the issues in this case.

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          {¶ 7} The right to a speedy trial is guaranteed by the Sixth Amendment to the United States Constitution and was made obligatory on the states through the Fourteenth Amendment. State v. Ladd (1978), 56 Ohio St.2d 197, 383 N.E.2d 579. Ohio's speedy-trial rights are codified in R.C....

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